Citation Nr: 18142802 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 17-38 014 DATE: October 17, 2018 ORDER 1. Entitlement to service connection for ischemic heart disease is dismissed. 2. Entitlement to service connection for diabetes mellitus type II is dismissed. 3. Entitlement to special monthly compensation based on the need for aid and attendance is dismissed. 4. Entitlement to service connection for a lumbar spine disability, to include as secondary to the service-connected left knee disability is denied. 5. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. 6. Entitlement to an initial disability rating in excess of 50 percent for anxiety disorder, not otherwise specified, with dysthymic disorder, is denied. REMANDED 7. Entitlement to an initial disability rating in excess of 10 percent for left knee arthritis with limitation of extension is remanded. 8. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In August 2018, VA contacted the Veteran and his attorney to clarify the issues on appeal and to ascertain whether the Veteran desired to withdraw any issues currently pending on appeal. In September 2018, prior to the promulgation of a decision in the appeal, the Veteran’s attorney submitted a written response, which indicated that the Veteran wished to withdraw the issues of entitlement to service connection for ischemic heart disease, entitlement to service connection for diabetes mellitus type II, and entitlement to special monthly compensation based upon the need for aid and attendance. 2. A lumbar spine disability did not have its onset during active service, arthritis was not manifested within one year of service discharge, and a lumbar spine disability is not otherwise related to active service, to include as secondary to the service-connected left knee disability. 3. COPD did not have its onset during active service and is not otherwise related to active service. 4. For the entire period on appeal, the Veteran’s anxiety disorder, not otherwise specified, with dysthymic disorder, has not been manifested by occupational and social impairment, with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a claim of entitlement to service connection for ischemic heart disease have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of a claim of entitlement to service connection for diabetes mellitus type II have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of a claim of entitlement to special monthly compensation based on the need for aid and attendance have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for service connection for a lumbar spine disability, to include as secondary to the service-connected left knee disability, have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 5. The criteria for service connection for chronic obstructive pulmonary disease (COPD) have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 6. The criteria for an initial disability rating in excess of 50 percent for anxiety disorder, not otherwise specified, with dysthymic disorder, have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9413 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1955 to April 1957. Withdrawn Claims 1. Entitlement to service connection for ischemic heart disease. 2. Entitlement to service connection for diabetes mellitus type II. 3. Entitlement to special monthly compensation based on the need for aid and attendance. The Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In August 2018, VA contacted the Veteran and his attorney to clarify the issues on appeal and to ascertain whether the Veteran desired to withdraw any issues currently pending on appeal. In September 2018, prior to the promulgation of a decision in the appeal, the Veteran’s attorney submitted a written response, which indicated that the Veteran wished to withdraw the issues of entitlement to service connection for ischemic heart disease, entitlement to service connection for diabetes mellitus type II, and entitlement to special monthly compensation based upon the need for aid and attendance. As such, there remain no allegations of errors of fact or law for appellate consideration with respect to these claims. Accordingly, the Board does not have jurisdiction to review the claims of entitlement to service connection for ischemic heart disease, entitlement to service connection for diabetes mellitus type II, and entitlement to special monthly compensation based upon the need for aid and attendance, and they are dismissed. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 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. Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. For certain chronic disorders, including arthritis, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. Additionally, for such chronic diseases shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. Even where service connection cannot be presumed, service connection may still be established on a direct basis. 4. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected left knee disability. The Veteran claims entitlement to service connection for a lumbar spine disability, to include as secondary to the service-connected left knee disability. As to evidence of a current disability, post-service treatment records document diagnoses of degenerative arthritis of the lumbar spine and degenerative disc disease. Thus, the first element of a service connection claim is met. Regarding the second element of a service connection claim, the service treatment records do not document complaints, treatment, or diagnosis of a disease or injury pertaining to the lumbar spine during active service. The April 1957 Report of Medical Examination shows a normal clinical evaluation of the Veteran’s spine and other musculoskeletal system, without noted defects or diagnoses regarding the Veteran’s lumbar spine. There were seven notes entered in the April 1957 Report of Medical Examination in the “Notes” section, and it did not include back pain or a back injury. Additionally, in the Report of Medical History that the Veteran completed upon separation, when asked about an illness or injury he had experienced that had not been documented in the Report of Medical History, the Veteran listed four injuries, which included an infected right foot (in 1957), broken left leg (in 1953), broken right hand (in 1950), and broken left arm (in 1946). The Board finds as fact that had the Veteran sustained an injury to his back (and other injuries he claimed occurred at the time of the basketball injury), he would have included that injury, as he listed four injuries covering a period of 11 years, which dates are prior to and during service, with specific years for each disability, but did not include an injury to his back/lumbar spine. The Veteran’s allegation of an in-service back injury is not credible. Further supporting this finding that the Veteran’s allegations of an in-service injury to the back are not credible are inconsistent statements he has made over the years. For example, in April 1998, when seeking service connection for his left knee, he described the injury during the basketball game as an injury to his left knee, which he wrote was a strain of cartilage and ligaments, and he reported he missed one and one-half months of playing basketball. In November 2010, he described sustaining injuries to his legs, knees, and back, when he was tripped and knocked into a brick wall at the end of the gymnasium and twisted his body sideways, as he hit the wall running full speed. He wrote that this happened in November 1956. He described undergoing a very painful rehabilitation, physical therapy, knee and leg braces, and crutches to get up and around. In January 2011, he wrote he sustained severe trauma to his legs, knees, feet, and back, when he collided with a brick wall and spent months in rehabilitation. At a February 2011 VA examination, the Veteran reported he injured his left knee and low back during a basketball game, when he was running at full speed, and someone blocked him. He stated he was treated in the adjacent room and not taken to a hospital and did not play basketball anymore after that. He also stated he was told he broke his knee at that time. In August 2012, he told a VA examiner that he was knocked unconscious and was out for five to seven minutes and injured his knees, back, neck, and hit his forehead. As time has gone on, the Veteran’s injuries at the basketball game have gotten worse, including his going from missing basketball for one and one-half months to never playing again and undergoing months of rehabilitation. The Veteran has attempted to assert that the examiner who performed the 1957 separation examination would not write down all the injuries/pain the Veteran was experiencing at that time. However, the Veteran filled out the Report of Medical History, and, as written above, he wrote down four injuries, which did not include an injury in 1956, but included a foot infection in 1957, which was the only in-service disease or injury he listed. In section 20 of that form, there were 60 symptoms listed, and the Veteran checked yes to some and no to others, which means he read through the symptoms and checked yes to those he had experienced and no to those he had not experienced. The examiner addressed the symptoms to which the Veteran checked yes in the Notes section of the Report of Medical Examination, which, as noted above, did not include a back injury (or a knee injury, or head injury, or a foot injury). In the Report of Medical History, the Veteran checked yes to foot trouble, and crossed out trouble and wrote “infection” in that entry. The Veteran was very specific in his medical history, which further supports the finding that had the Veteran sustained a back injury in November 1956, it would have been documented in the Report of Medical History. The Veteran completed this form less than six months after November 1956, and based on the descriptions of undergoing rehabilitation with braces and crutches, something to that effect would have been documented in the Report of Medical History, since less severe injuries were documented. Accordingly, the contemporaneous records do not support the Veteran’s allegation of severe injuries, which includes an injury to his low back, and months of rehabilitation. The Veteran signed the Report of Medical History, wherein he certified that the facts he reported were true and complete to the best of his knowledge. The Board has no reason to question the accuracy of the facts the Veteran wrote into that document, since he completed it contemporaneously with service. This is further evidence that supports the conclusion that the Veteran did not injure his lumbar spine in service. The Board is aware that at the November 2016 VA examination the Veteran told the examiner that he filled out only the demographic information on top of the first page of the 1957 Report of Medical History and signed the document and that he did not fill in the check marks on the form. Due to multiple, inconsistent statements made by the Veteran throughout the appeal period, which is discussed above and is discussed below, the Board does not find this statement credible and finds no reason to question the facts documented in the 1957 Report of Medical History, which, again was completed contemporaneously with service. The Board acknowledges that a November 2010 statement submitted by a high school friend of the Veteran reports that he was aware of the Veteran’s in-service basketball injury. Notably, however, the statement does not specifically mention an injury to the Veteran’s lumbar spine. A statement made more than 40 years later is less probative than the contemporaneous records, one of which was completed by the Veteran while he was still in service and less than one year after the alleged injury. In going through the record, the Veteran has made other inconsistent statements, which damages his overall credibility. For example, the Veteran has reported varying dates as to when he last worked and varying educational levels, which are not consistent with each other. He submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in February 2011. He wrote that he became too disabled to work in February 2006 and had two years of college. In a VA Form 21-8940 submitted in June 2013, he wrote he became too disabled to work in December 2004 and had three years of college. In a VA Form 21-8940 submitted in February 2014, he wrote he became too disabled to work in February 2006 and had two years of college. In a VA form 21-8940 submitted in November 2015, he wrote he became too disabled to work in December 2004 and had two years of college. In a VA Form 21-8940 submitted in September 2018, he wrote he became too disabled to work in December 2004 and had three years of college. However, in July 2007, August 2007, and October 2007 private medical records from three, different physicians, each noted that the Veteran was working. For example, in July 2007 and October 2007 records, the examiner wrote, “The patient is currently employed as a real estate broker.” In a separate August 2007 private record from a different physician, this physician wrote, “He is [] actively employed as [an] estate broker.” A third physician wrote in an August 2007 record, “The patient is a real-estate broker and lives alone in Stuart.” Last, in an August 2007 record that the Veteran completed for a private medical facility, when asked his occupation, the Veteran wrote, “RE BROKER.” When asked if he was currently working, the Veteran circled yes. This was signed by the Veteran on August 23, 2007. He certified that his answers were correct to the best of his knowledge. This would show that the Veteran was, in fact, working in 2007. As noted above, the Veteran has varied the date of when he last worked. The inconsistency of his facts as to when he last worked, saying he was not working when private medical records from three physicians show he was working, and his varying levels of education (he reported to the August 2013 VA examiner that he had one year of college) has damaged his overall credibility. He signed each of the 21-8940 applications he submitted over a seven-year period attesting to the truth of the facts, which facts were not accurate, again, as he claimed he stopped working in either 2004 or 2006, when he was still working in 2007 and at least until October 2007. In a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, received in December 2015, which the Veteran completed, he wrote he last worked in December 2005. In a January 21-4138, Statement in Support of Claim, dated January 2016, the Veteran wrote he had “not worked any job since the end of 2004.” He has varied the date he became too disabled to work from February 2006, to December 2004, to December 2005, when private medical records from show he was working in 2007. All of the 21-8940 applications were completed after 2007. The Board has no reason to question the accuracy of the private records, as they are all consistent with each other that the Veteran was working in 2007 as a real estate broker, and the Veteran signed a document contemporaneously in August 2007 stating that he was working. Therefore, to the extent that the Veteran has claimed an in-service basketball injury to his lumbar spine, which continued to worsen thereafter to the present time, the Board affords no probative value to such statements. Additionally, a February 1998 VA orthopedic consultation documents the Veteran’s report of a left knee basketball injury in the 1950s; however, he did not mention a concurrent or related lumbar spine injury. A June 1998 VA treatment record shows that the Veteran reported a history of back pain, which he thought he hurt while working out at the gym. One week later, he reported pain in the lower part of his thoracic spine and lumbar spine, which had “started” three weeks ago while working in the gym. Additionally, private treatment records from August 2007 document the Veteran’s report that he was “in his usual state of good health until approximately four to five years ago, when he developed back pain and pain radiating into his legs.” He denied a history of trauma and could not think of anything that had caused his symptoms. To the extent that the Veteran has asserted that his lumbar spine disability is related to his left knee disability, including within a January 2011 statement, which asserts that his left knee affected his walking gait and posture, which led to his worsening back condition, the Board affords no probative value to such statements, as the Veteran lacks the medical expertise required to render a nexus opinion relating complex orthopedic conditions to one another. Without an in-service disease or injury, service connection for a lumbar spine disability on a direct basis is not warranted. The Board acknowledges the May 2012 and February 2014 private nexus opinions in support of the Veteran’s claim wherein a private physician concluded, based upon a history provided by the Veteran, a physical exam, and a review of post-service medical records (there was no indication that the examiner reviewed the service treatment records), that it was more likely than not that the Veteran’s chronic low back pain was a direct result of injuries sustained while playing basketball in 1956 while enlisted in the Army. However, this opinion has no probative value given its reliance on the Veteran’s statements, which, as discussed above, are not credible as to having sustained an injury to his lumbar spine/back in service. Moreover, it does not appear that the private physician reviewed the Veteran’s service treatment records, as he did not list them when describing what evidence he reviewed, and which do not document the Veteran’s reported basketball injury and showed a normal clinical evaluation of the spine at separation. A medical opinion based on an inaccurate factual history has no probative value. Thus, the Board accords no probative value to these medical opinions. As to secondary service connection, the Board finds that the preponderance of evidence weighs against a finding of a nexus between the Veteran’s current lumbar spine disability and his active service, to include his service-connected left knee disability. For example, upon VA examination in February 2011, the Veteran claimed that his back condition was secondary to his left knee condition. He reported that his back pain started one month after he got out of service, but noted that he had injured his left knee, ankle, and back during a 1956 basketball game in Korea. The VA examiner noted that diagnostic testing showed degenerative joint disease (DJD) of the lumbar spine but ultimately opined that the claimed condition was less likely as not caused by or a result of the Veteran’s left knee condition. The examiner stated that the Veteran’s lumbar DJD was due to wear and tear of the lumbar spine over his 75 years of life and not because of the left knee disability. He added that the current finding in the spine is because of the DJD process happening in the lumbar spine and not the left knee disability. This is evidence against a finding that the left knee disability caused or aggravated the lumbar spine disability. Additionally, a July 2013 letter from a VA physician who performed lumbar spine surgery on the Veteran documents that the physician was unable to make a connection between the Veteran’s reported 1956 basketball injury and the Veteran’s lumbar spine degenerative disease and stenosis in 2011 and 2013, as there are too many other possible contributing factors. This conclusion does not support a secondary relationship. Most recently, upon VA examination in November 2016, the Veteran again reported that his back pains started in 1956 following a basketball injury. The examiner ultimately opined that the Veteran’s claimed back condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness, as there was no evidence of a back injury or treatment for a back injury within service treatment records. The examiner noted that an April 1957 separation examination did not document a back condition and the Veteran denied any back conditions in a concurrent report of medical history. The examiner acknowledged the Veteran’s report that he sought treatment for his claimed back problem soon after discharge from multiple medical providers; however, this was not confirmed by a review of records, though the Veteran further stated that the medical providers were now deceased and he was unsuccessful in obtaining his prior treatment records. In conclusion, the Board finds that the preponderance of the evidence does not support that the Veteran’s current lumbar spine disability had its onset during active service or that it is otherwise related to active service, to include as secondary to his service-connected left knee disability. As the preponderance of evidence weighs against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim must be denied. 5. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). The Veteran also claims entitlement to service connection for chronic obstructive pulmonary disease (COPD). The Board first notes that post-service treatment records document that the Veteran was diagnosed with COPD in approximately 2007, which is sufficient to satisfy the first element of a service connection claim. Regarding the second element of a service connection claim, service treatment records do not document any complaints, treatment, or diagnosis of COPD or another chronic respiratory disability during active service. While there are isolated complaints of cold symptoms in November 1955 and March 1956, as well as an undated notation regarding an inhaler, the Board finds it probative that physical examinations prior to enlistment in June 1955 and upon separation in April 1957 document normal clinical evaluations of the Veteran’s lungs and chest, without any noted defects or diagnoses regarding the Veteran’s respiratory system. Moreover, the Veteran denied related symptoms within the concurrent Reports of Medical History. Finally, the Board finds that the preponderance of evidence weighs against a finding of a nexus between the Veteran’s current lumbar spine disability and his active service. Upon VA examination in August 2013, the examiner noted that COPD was diagnosed in 2007. The Veteran denied any hospitalized for a lung condition during and after active service. He noted a history of tobacco use of one pack per day for 20 years, though he stopped smoking in 1992 and had been using an inhaled bronchodilator for approximately 10 years. The examiner ultimately opined that the Veteran’s COPD was less likely than not incurred in or caused by active service. Rather, the Veteran’s COPD was more likely due to his history of tobacco use with second hand smoke exposure. The examiner acknowledged that service treatment records from November 1955 and March 1956 document isolated reports of cold symptoms did not likely cause the Veteran’s COPD, which was only noted since a 2007 pulmonary function test (PFT). To the extent that a July 2016 statement by the Veteran asserts that his COPD is due to exposure to herbicide agents during active service in the Korean Demilitarized Zone (DMZ) during 1956-57, the Board initially notes that the Veteran did not serve in one of the units determined by the Department of Defense to have operated in the Korean DMZ between April 1, 1968, and August 31, 1971. Thus, it may not be presumed that the Veteran was exposed to herbicides during active service; moreover, actual exposure to herbicides is also not shown by the probative evidence of record. Additionally, COPD is not one of the diseases, which VA has identified that warrants presumptive service connection based upon exposure to herbicide agents. Finally, the Veteran does not possess the requisite medical expertise in order to render a nexus opinion, which links his current COPD to his active service. In conclusion, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran’s current COPD had its onset during active service or that it is otherwise related to active service. As the preponderance of evidence weighs against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim is denied. Increased Rating 6. Entitlement to an initial disability rating in excess of 50 percent for anxiety disorder, not otherwise specified, with dysthymic disorder. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. With respect to the Veteran’s initial rating claim on appeal, the Board has considered his claim from the assigned initial effective date, which the Veteran has not appealed, as well whether any staged ratings are warranted. The Veteran’s service-connected anxiety disorder, not otherwise specified, with dysthymic disorder, is currently rated as 50 percent disabling from May 7, 2012 under Diagnostic Code (DC) 9413 of the General Rating Formula for Mental Disorders. Under the applicable rating criteria, a 50 percent disability rating 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 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 in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted for 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. Finally, a 100 percent disability rating is warranted when there is 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. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. The use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Additionally, the Board is mindful that GAF scores are inapplicable to assign a psychiatric rating when, as here, the appeal was certified after August 4, 2014. See Golden v. Shulkin, 29 Vet. App. 221 (2018). As discussed below, following a review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to an initial disability rating in excess of 50 percent for anxiety disorder, not otherwise specified, with dysthymic disorder, for the entire period on appeal. In order to warrant an increased 70 percent disability rating, the Veteran’s overall impairment from his service-connected psychiatric disability would need to approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Notably, however, the preponderance of the evidence is against a finding that the Veteran’s service-connected psychiatric disability resulted in such impairment for any period on appeal. Upon initial VA psychiatric examination in August 2013, the VA examiner diagnosed anxiety disorder, not otherwise specified (as subthreshold symptoms of claimed posttraumatic stress disorder (PTSD), and dysthymic disorder; additionally, the examiner noted that it was not possible to separate the individual effects of each disorder. Upon mental status examination, the Veteran appeared alert and oriented, with proper dress and appearance, polite and cooperative attitude, and normal speech, thought process/content, immediate memory, psychomotor activity, judgment, and insight. The Veteran denied any suicidal or homicidal ideation but reported some mild memory loss. The examiner noted that the Veteran’s identified psychiatric symptoms, including depressed mood; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; and difficulty in establishing and maintaining effective work and social relationships resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Upon subsequent VA psychiatric examination in January 2016, the examiner diagnosed PTSD and persistent depressive disorder (dysthymia), with overlapping symptoms that occurred in a concurrent and reciprocal relationship, which made it impossible to separate them without resorting to mere speculation. The Veteran reported that he was not in a relationship and estranged from his three children, and he was not close to his sisters due to conflict of money at the time of his mother’s death. He reported having a lot of friends but stated that he rarely spent time with them due to various medical conditions, including physical pain, which limited his past fishing and golfing hobbies; however, he reported that he went out to eat nearly every day and continued to enjoy hobbies including watching sports, surfing the Internet, and reading the newspaper. He further stated that he had been retired since 1984, when he worked as vice-president of a bank. Upon mental status examination, he was alert and oriented, claim and responsive, with congruent affect, normal speech, thought content, and intact judgment and insight. He denied any suicidal or homicidal ideation. The examiner concluded that his psychiatric symptoms, including depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and decreased energy resulted in occupational and social impairment with reduced reliability and productivity. Most recently, upon VA psychiatric examination in July 2017, the VA examiner noted psychiatric diagnoses of PTSD and persistent depressive disorder. The examiner stated that the Veteran did not currently meet the full PTSD diagnostic criteria, but noted that the diagnosis would be retained as the Veteran likely alternated in and out of meeting such criteria. Moreover, the examiner noted that the Veteran’s overlapping symptoms occurred in a concurrent and reciprocal relationship, which made it impossible to separate them without resorting to mere speculation. Upon mental status examination, the Veteran appeared alert and oriented, with normal speech and thought process, intact judgment and insight, and no memory impairment. The Veteran again denied suicidal or homicidal ideation. The examiner concluded that the Veteran’s psychiatric symptoms, including depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; decreased energy; and agitation without behavioral aggression resulted in occupational and social impairment with reduced reliability and productivity. The Board notes that in the VA examination reports discussed above, the VA examiners checked that the Veteran’s occupational and social impairment met the criteria for a 30 and 50 percent disability rating. While the adjudicator is responsible in determining which disability rating is warranted for the Veteran’s service-connected psychiatric disorder, the VA examiners’s conclusions that the Veteran’s psychiatric disorder is best described as meeting the 30 and 50 percent disability rating criteria are evidence against a finding that the Veteran’s service-connected psychiatric disorder causes occupational and social impairment with deficiencies in most areas. Additionally, VA treatment records during the appeal period also weigh against the Veteran’s claim. Upon mental status examination in August 2012, he appeared alert and oriented, cooperative and reasonable, with normal speech, thought process/content, intact judgment and insight, and mildly impaired memory; notably, the Veteran firmly denied any known problems with his memory, as well as suicidal or homicidal ideation, though he reported depression and anxiety. In August 2013, he again appeared alert and oriented, cooperative and reasonable, with normal speech, thought process/content, and intact judgment and insight, without suicidal or homicidal ideation. The Veteran reported some mild memory impairment, though he noted it was being distracted more than forgetful, in addition to generalized anxiety and some arranging compulsions, though he denied that such conditions resulted in impairment. In October 2013, the Veteran complained of anxiety and sleep impairment with nightmares, in addition to some past passive suicidal ideation, though he noted that he enjoyed life too much and valued his religion to prevent any actual attempt. He reported that he socialized, interacted with friends, and reached out regularly to his children. This is evidence against a finding of the inability to establish and maintain effective relationships. In August 2014, he described irritability and depression, with avoidance, hypervigilance, hyperarousal, and episodic nightmares. In June 2017, he appeared alert and oriented, with a good mood, and he denied any suicidal or homicidal ideation. As the Veteran’s psychiatric symptoms do not meet the rating criteria for a higher 70 percent disability rating for any period on appeal, it follows that his symptoms also do not meet the more severe rating criteria for an increased 100 percent disability rating. Significantly, he has not shown the required severity of occupational and social impairment necessary for an increased 100 percent disability rating for any period on appeal, and his symptoms as a whole are not of similar severity, frequency, and duration as those particular symptoms associated with a 100 percent disability rating. In conclusion, the preponderance of the evidence is against the Veteran’s claim of entitlement to an initial disability rating in excess of 50 percent for anxiety disorder, not otherwise specified, with dysthymic disorder, for the entire period on appeal, as his service-connected psychiatric disability is not more closely approximated by occupational and social impairment with deficiencies in most areas. As the preponderance of the evidence is against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim must be denied. REASONS FOR REMAND 7. Entitlement to an initial disability rating in excess of 10 percent for left knee arthritis with limitation of extension is remanded. A review of the record reveals that the Veteran was last afforded VA knee examination in November 2016. Moreover, since that time, the Veteran has submitted VA treatment records, which document that he underwent left knee surgery, specifically a total knee arthroplasty (TKA), in July 2018. Such evidence is sufficient indication that the Veteran’s service-connected left knee arthritis has worsened in severity during the appeal period. As such, the Board concludes that a new VA examination is necessary to determine the current severity of the Veteran’s service-connected left knee disability, as well as a determination by the Agency of Original Jurisdiction (AOJ) regarding a potential increased disability rating under DC 5055 regarding prosthetic replacement of the knee joint. 8. Entitlement to a total disability rating based upon individual unemployability (TDIU). The Veteran’s claim of entitlement to a TDIU rating is dependent upon his overall combined disability rating and will therefore be affected by his remanded claim regarding his left knee. As such, the Board finds that his TDIU claim is inextricably intertwined with his left knee claim, and as such, it must also be remanded. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA knee examination to assess the current severity of his service-connected left knee arthritis. Any indicated diagnostic tests and studies must be accomplished and all pertinent symptomatology and findings should be reported in detail according to the relevant rating criteria. A complete rationale for all opinions expressed should also be provided. 2. Then adjudicate the Veteran’s left knee increased rating claim with consideration of DC 5055, as well as his intertwined TDIU claim. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel