Citation Nr: 18146298 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-15 439A DATE: November 1, 2018 ORDER Entitlement to an earlier effective date than January 31, 2011, for grant of service connection for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to an increased disability rating in excess of 70 percent disabling for PTSD is denied. Entitlement to a total disability rating by reason of individual unemployability (TDIU) is granted. REMANDED Entitlement to an increased rating in excess of 10 percent disabling for left knee disability based on limitation of motion is remanded. Entitlement to an increased rating in excess of 10 percent disabling for left knee disability based on instability is remanded. Entitlement to an increased rating in excess of 10 percent disabling for right knee disability based on instability is remanded. Entitlement to an increased rating in excess of 10 percent disabling for right knee disability based on limitation of motion is remanded. FINDINGS OF FACT 1. A June 2011 rating decision granted the Veteran’s claim of entitlement to service connection for PTSD and assigned a 50 percent disability rating effective January 31, 2011 (date of claim); the Veteran did not timely initiate an appeal with respect to the evaluation and/or the effective date assigned. 2. The June 2011 rating decision granting service connection for PTSD is final; the Veteran’s claim for an effective date earlier than January 31, 2011, for grant of service connection for PTSD is a freestanding claim. 3. The Veteran is capable of adequate thought processes and communication, appropriate behavior, and ability to perform activities of daily living; his service-connected psychiatric disability is not productive of total occupational and social impairment. 4. An increase in disability level for the Veteran’s PTSD is not factually ascertainable within one year prior to receipt of the Veteran’s increased rating claim. 5. The Veteran is precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The June 2011 rating decision granting service connection for PTSD and assigning a 50 percent disability rating effective January 31, 2011, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. Due to the finality of the June 2011 rating decision, the Board has no jurisdiction to adjudicate the merits of the Veteran’s appeal for an earlier effective date for grant of service connection for PTSD. 38 U.S.C. § 7104 (a) (2012); 38 C.F.R. § 20.1103 (2018). 3. The criteria for an increased disability rating in excess of 70 percent for the Veteran’s service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018). 4. The criteria for award of a TDIU rating have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to June 1976, including two periods of service in the Republic of Vietnam (Vietnam). These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and February 2014 rating decisions, respectively, by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2017, the Veteran appeared with his representative for a videoconference hearing before the undersigned. A transcript of that proceeding has been associated with the record. In a March 2016 rating decision, the RO granted an increased 70 percent disability rating with an effective date of July 1, 2012 (first month following temporary total rating following hospitalization). As this is not the maximum disability rating possible, the appeal remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Lastly, the Board notes that the Veteran submitted a statement in April 2017 attempting to raise the issue of CUE with the June 2006 rating decision by the RO denying entitlement to service connection for PTSD. The Board does not have jurisdiction over this issue. The Agency of Original Jurisdiction should take all appropriate actions, to include, if deemed necessary, sending the Veteran a formal application form. 1. Entitlement to an earlier effective date of July 1, 2010, for grant of service connection for PTSD The Veteran, through his attorney, has consistently asserted entitlement to an effective date earlier than January 31, 2011, for grant of service connection for PTSD. In doing so, the Veteran contended that an earlier effective date is warranted pursuant to relaxed evidentiary standard for establishing occurrence of a stressor for PTSD under 38 C.F.R. § 3.304(f)(3). In this case, a June 2011 rating decision by the RO granted the Veteran’s claim of entitlement to service connection for PTSD and assigned a 50 percent disability rating effective January 31, 2011 (date of claim). The Board finds no written communication (even liberally construed) was received from the Veteran or any representative expressing dissatisfaction or disagreement with and/or expressing a desire to contest the June 2011 adjudicative decision. See 38 C.F.R. § 20.201 (2010). As such, the June 2011 rating decision became final. The first evidence of disagreement with the effective date assigned to the grant of service connection for PTSD is a statement dated in December 2013. It is well-established legal principle that there can be no freestanding claim for an earlier effective date because to allow such a claim would be contrary to the principle of finality set forth in 38 U.S.C. § 7105. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision, as freestanding claims for earlier effective dates vitiate the rule of finality). Based on a review of the record, and the applicable laws and regulations, the Board finds that this issue must be dismissed as a matter of law for lack of jurisdiction. 2. Entitlement to an increased disability rating in excess of 70 percent disabling for PTSD Legal Principles A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155. When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). This is because the effective date of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability level had occurred, if application is received within one year of such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); see also Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (stating that an “increase” for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). Where the evidence reflects that the increase in severity first occurred more than one year before the date of the claim, 38 C.F.R. § 3.400 (o)(2) would not apply and the effective date is the date of the claim. Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted where a mental disability results in: [o]ccupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); and inability to establish and maintain effective relationships. A 100 percent rating is warranted where a mental disability results in: [t]otal 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). The symptoms listed in the rating formula are examples, not an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that “any suggestion that the Board was required... to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation”). However, “a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). “The regulation’s plain language highlights its symptom-driven nature” and “symptomatology should be... the primary focus when deciding entitlement to a given disability rating.” Id. at 116-17. As such, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment to the extent specified in the rating criteria; rather than solely on the examiner’s assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126(a). Discussion Based on a review of the evidence, the Board finds that an increased rating in excess of 70 percent disabling for the Veteran’s PTSD is not warranted in this case because the Veteran does not demonstrate particular symptoms associated with a higher 100 percent rating, or others of similar severity, frequency, and duration that would more closely approximate the criteria for the higher rating. In making that finding, the Board notes that the record does not reflect gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger to self and others; or an inability to perform activities of daily living, including maintenance of personal hygiene. While the presence of these symptoms is not outcome determinative, the record also does not reflect other symptomatology of similar severity, frequency, and duration. For instance, treatment records dated in July 2012 reflect, in pertinent part, the Veteran presented with normal speech, linear and goal oriented thought process, and appropriate thought content. In fact, the physician noted the Veteran’s communication skills and capacity for stable relationships as his “strengths.” Report of the March 2013 VA examination reflects, in pertinent part, the Veteran endorsed symptoms such as depressed mood, anxiety, chronic sleep impairment, impaired memory, and difficulty adapting to stressful circumstances. The examiner assessed the Veteran’s symptomatology more nearly approximates a 70 percent rating. Report of the February 2014 VA examination reflects the Veteran’s statements regarding close relationships with his brother, sister, and nephew. Similar findings were noted at the June 2016 VA examination. For the foregoing reasons, the Board finds that a rating in excess of 70 percent for the Veteran’s service-connected PTSD is not warranted. The Board acknowledges the intermittent instances of visual hallucinations and/or disorientation. For instance, treatment records from July 2015 reflect the Veteran experiences episodic visual hallucinations and disorientation of time and place. The Board finds that the episodic instances of visual hallucinations and disorientation of time and place, by itself or when considered with other symptomatology, did not cause the level of occupational and social impairment associated with a 100 percent disability rating. For instance, the Veteran maintains close familial relationships. At his February 2017 hearing, the Veteran indicated he enjoys going to his cousin’s place of employment (who is a mechanic) and socializing. Given the frequency, severity, and duration of the psychiatric symptoms described by the Veteran and documented in the record, the Board finds it does not more nearly approximate total social and occupational impairment, but rather reflect a lesser degree of impairment that is contemplated by the 70 percent rating assigned. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board sympathetically finds that the preponderance of the evidence is against the Veteran’s claim for increased rating in excess of 70 percent for PTSD. Next, the Board has also considered whether an effective date earlier than July 1, 2012, for an increased 70 percent disability rating is warranted. As indicated above, the effective date of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability level had occurred, if application is received within one year of such date. Based on a review of the evidence, the Board finds that an effective date earlier than July 1, 2012, for increased 70 percent disability rating for PTSD is not warranted in this case because the evidence reflects that the increase in severity first occurred more than one year before the date of the claim In making this finding, the Board notes that the Veteran’s PTSD initially rated as 50 percent disabling from January 31, 2011. The Veteran filed a claim for increased compensation for PTSD in April 2012. Medical treatment records dated in November 2007 reflect, in pertinent part, the presence of sporadic suicidal ideations. Treatment records dated in January 2008 reflect, in pertinent part, a history of suicidal ideations occurring monthly. Treatment records dated in March 2011 reflect, in pertinent part, the presence of psychiatric symptoms such as persistent depression, irritability with unprovoked violence, visual hallucinations, and suicidal ideations. Private mental health treatment records reflect other symptomatology of similar severity, frequency, and duration that warrant an increased disability level. Given the increase in severity first occurred more than one year before the date of the claim, 38 C.F.R. § 3.400 (o)(2) would not apply and the effective date of the increased 70 percent rating is the date of the claim. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board sympathetically finds that the preponderance of the evidence is against the Veteran’s claim for an earlier effective date for increased 70 percent disability rating for PTSD, subject to controlling regulations applicable to the payment of monetary benefits. 3. Entitlement to a TDIU Legal Principles Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Id. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran is not required to show 100 percent unemployability; rather, the question is whether he or she is unable to pursue a substantially gainful occupation. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Further, the question is not whether the Veteran can find employment, but “whether the veteran is capable of performing the physical and mental acts required by employment.” Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (emphasis in original). Discussion The Veteran has been granted service connection for PTSD (rated as 50 percent disabling prior to May 10, 2012, and increased to 70 percent from July 1, 2012 (excluding the period of temporary total rating)); right knee disability based on limitation of motion (rated as noncompensable prior to June 25, 2011, and increased to 10 percent therefrom); right knee disability based on instability (rated as 10 percent from March 20, 2006); left knee disability based on limitation of motion (rated as noncompensable prior to June 25, 2011, and increased to 10 percent therefrom); and left knee disability based on instability (rated as 10 percent from November 24, 2006). Disabilities are combined using the Combined Ratings Table found at 38 C.F.R. § 4.25. Using this table, the Veteran’s combined rating for service-connected disabilities is noncompensable from December 4, 1997, is 20 percent from June 25, 2001, is 30 percent from March 20, 2006, is 40 percent from November 24, 2006, is 70 percent from January 31, 2011, is 100 percent from May 10, 2012, and is 80 percent from July 1, 2012. As a preliminary matter, the Board notes that the Veteran meets the schedular criteria for an award of TDIU benefits as of January 31, 2011. After a thorough review of the record, the Board finds that an award of TDIU benefits is warranted in this case. In making this finding, the Board has considered the Veteran’s service-connected disabilities, employment history, educational attainment, and all other factors having a bearing on this issue. As indicated, the Veteran served on active duty from November 1967 to June 1976. His military occupational specialty (MOS) is noted as Wire Operator Specialist, i.e., Construction foreman. Following service, the Veteran attended one-year of technical school training in air conditioning and refrigeration at Florence-Darlington Technical College. Thereafter, the Veteran’s civilian occupational history consisted of labor intensive employment as an industrial mechanic. Report of the June 2015 VA psychiatric examination reflects, in pertinent part, the examiner’s assessment that the severity of the Veteran’s psychiatric symptoms impacted the Veteran’s ability to concentrate and/or complete tasks, which would negatively impact his ability to be productive in any work environment. Medical treatment records dated in December 2010, i.e., therapy sessions, notes the Veteran in and out of jobs for many years due to an inability to adequately cope/adapt to stressful circumstances at work and with colleagues. This is consistent with a private vocational examination submitted in January 2017, which reflects, in pertinent part, the authors assessment that the Veteran would not be capable of performing the physical and mental acts required by any type of sustained employment due to the physical and psychological limitations imposed by the Veteran’s service-connected disabilities. In doing so, the author highlighted the Veteran’s labor-intensive occupational history, and noted that his limited ability to ambulate would preclude him from physical employment. Additionally, the examiner noted the Veteran’s psychiatric symptoms would prevent him from maintaining any other type of employment. As such, the Board finds that the veteran is not capable of performing the physical and mental acts required by either physical or sedentary jobs, and thus, an award of TDIU benefits is warranted. REASONS FOR REMAND A review of the record reflects that further development of these claims is necessary prior to appellate consideration. The Board notes that the Veteran was most recently provided with a VA orthopedic examination in June 2015. Report of the June 2015 VA examination reflects, in pertinent part, the Veteran’s statements regarding increased bilateral knee pain exacerbated by prolonged sitting or standing. The Veteran also reported experiencing sensations of giving way which occasionally cause him to fall. Physical examination revealed decreased range of motion. The Veteran reported experiencing flare-ups described as “sharp pain” that causes further decreased range of motion. The examiner indicated he could not provide an opinion regarding functional loss during a flare up without resort to mere speculation because of the variable factors leading up to the flare up. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board may accept a VA examiner’s statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. Although not binding on VA examiners, the VA Clinician’s Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Sharp, 29 Vet. App. at 34-35, citing VA CLINICIAN’S GUIDE, ch. 11. For example, a VA examination report is not adequate when the VA examiner failed to elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record- including the veteran’s lay information-or explain why she or he could not do so. Sharp, 29 Vet. App. at 34-35. In this case, it is unclear whether the examiner took the reasonable steps necessary to procure and be sufficiently informed of any additional or increased symptoms and limitations experienced by the Veteran during flare-ups. Additionally, the examiner failed to provide an adequate rationale as to why such an opinion would amount to mere speculation. As such, the Board finds that a remand is necessary to obtain new examinations regarding the current nature and severity of the Veteran’s bilateral knee disability. Parenthetically, the Board also notes subsequent medical treatment records reflect the Veteran presented with “debilitating” knee pain. As such, a remand is also appropriate to ascertain the Veteran’s current level of impairment. 1. Entitlement to an increased rating in excess of 10 percent disabling for left knee disability based on limitation of motion is remanded. For the reasons set forth above, this issue must be remanded prior to appellate consideration. 2. Entitlement to an increased rating in excess of 10 percent disabling for left knee disability based on instability is remanded. For the reasons set forth above, this issue must be remanded prior to appellate consideration. 3. Entitlement to an increased rating in excess of 10 percent disabling for right knee disability based on instability is remanded. For the reasons set forth above, this issue must be remanded prior to appellate consideration. 4. Entitlement to an increased rating in excess of 10 percent disabling for right knee disability based on limitation of motion is remanded. For the reasons set forth above, this issue must be remanded prior to appellate consideration. The matters are REMANDED for the following action: 1. Obtain all outstanding post-service medical treatment records from VA treatment facilities. 2. Thereafter, schedule the Veteran for VA examination by an appropriate medical professional to determine the nature and current severity of the Veteran’s service-connected left and right knee disability. In particular, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for both joints in question, i.e., bilateral knees. If the examiner is unable to conduct any aspect of the required testing or concludes that it is not necessary, e.g., non-weight-bearing, the examiner should clearly explain why that is the case. The electronic claims file must be made accessible to the examiner for review, and such review should be noted in the examination report. Following a review of the claims file and medical history, the VA examiner should: (a.) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion should be noted. If the Veteran describes flare-ups of pain, the examiner must document the nature and frequency at which such flare-ups occur, and offer an opinion as to whether there would be additional limits on functional ability during flare-ups. To the extent possible, all losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. (b.) Indicate whether there is recurrent subluxation or instability of the bilateral knees, and if so, the severity and frequency of any recurrent subluxation or instability. If instability is unable to be tested, an explanation should be provided. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, issue a SSOC and provide the Veteran and his attorney with an opportunity to respond. Then return the case to the Board, if otherwise in order. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel