Citation Nr: 18147645 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 17-56 645 DATE: November 6, 2018 ORDER New and material evidence has not been received to reopen a claim of service connection for a low back disability. The claim to reopen is denied. Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD) is granted, subject to regulations governing payment of monetary benefits. FINDINGS OF FACT 1. An October 2010 rating decision confirmed and continued a denial of service connection for a chronic low back condition. 2. Evidence added to the record since the October 201 rating decision does not contribute to a more complete picture of the Veteran’s claim for a low back disability and does not create a reasonable possibility of an allowance of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a left foot disability. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a right foot disability. 5. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a left knee disability. 6. The preponderance of the evidence is against finding that the Veteran has right knee disability due to a disease or injury in service, to include specific in-service event, injury, or disease. 7. The Veteran’s PTSD has caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking or mood, but not total occupational and social impairment CONCLUSIONS OF LAW 1. The October 2010 rating decision that confirmed and continued the denial of service connection for a chronic low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has not been received since the October 2010 rating decision to reopen the claim for service connection for a low back disability. 38 U.S.C. §§ 5107; 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a left foot disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for a right foot disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for right knee disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for an initial 70 percent rating, but not higher for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.130, Diagnostic Code (Code) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to April 1971. The Board acknowledges that in October 2018 the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form, however as the appeal had already been activated at the Board, the claims on appeal are not eligible for the RAMP program. The Board notes on outset the Veteran asserts that his claims should be granted based on Social Security Administration’s (SSA) determination. However, SSA’s determination is not binding on VA because of the significant differences in the two agencies’ regulatory schemes. Holland v. Brown, 6 Vet. App. 443 (1994). Claim to Reopen The Veteran seeks to reopen his claim of service connection for a low back disability. The Veteran’s claim was initially denied by a September 2009 rating decision because the evidence did not show that the Veteran had a back disability in service or that the condition manifest within one year of separation from service. An October 2010 rating decision confirmed and continued the denial. The Veteran did not appeal the October 2010 determination, and new and material evidence was not received within one year of the decision. Therefore, that rating decision became final. The question before the Board is whether new and material evidence has been submitted to reopen the claim. Evidence of record in October 2010 included the Veteran’s service treatment records, military personnel records, VA treatment records, lay statements and a February 2009 SSA determination that found the Veteran to be disabled due to degenerative changes of his left hip and spine. Evidence received since the October 2010 rating decision includes updated VA treatment records and lay statements by the Veteran. While this evidence is new in that it was not considered by the October 2010 rating decision, such evidence is not material because it does not raise relate to an unestablished fact or raise a possibility of establishing that the Veteran’s low back disability is related to his service. The recently submitted evidence does not address whether the Veteran has a current diagnosis that may be associated with his service. Thus, the Board finds that new and material evidence has not been received, the claim is not reopened, and the Veteran’s appeal to this extent is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.   Bilateral Foot and Left Knee The Veteran contends that he has bilateral foot and left knee conditions that are related to service. The question for the Board is whether the Veteran has current disabilities that began during service or are at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a condition in either foot or of a left knee disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Despite treatment from September 2002 to June 2017, VA treatment records do not contain a diagnosis of a foot or left knee disability. The Veteran’s VA treatment records contains reports of bilateral lower extremity pain. The Board notes that pain alone may constitute disability, even without an identifiable underlying pathology. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board finds, however, there is no evidence and the Veteran does not report that pain in either foot or his left knee impairs functioning. To establish the presence of a disability, a claimant would need to show that the pain reached the level of a “functional impairment,” which is defined as “the inability of the body or a constituent part of it to function under the ordinary conditions of daily life, including employment.” Id. at 1367-68. That has not been shown here. Pain itself does not rise to the level of functional loss; pain must affect some aspect of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App.32 (2011); While Veteran believes he has a current diagnoses of a bilateral foot disability and left knee disability, he is not competent to provide a diagnosis in this case because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Right Knee The Veteran also seeks service connection for a right knee disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of degenerative joint disease of the right knee, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of right knee disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). There is no evidence of complaints, treatment, or diagnoses related to right knee complaints in service, and the Veteran himself has not asserted how his right knee disability is related to service. VA treatment records first indicate that the Veteran has a diagnosis of degenerative joint disease of the right knee in September 2014, at which time he reported the onset of pain 6 weeks prior, following an acute injury. Accordingly, a nexus to the Veteran’s active duty service cannot be established and service connection for right knee disability is denied. Increased Rating The Veteran seeks entitlement to a higher initial rating for his service-connected PTSD. His PTSD has been evaluated as 50 percent disability from May 26, 2015 under 38 C.F.R. § 4.130 Code 9411. Disability ratings are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board concludes that an initial 70 percent rating, but no higher, is warranted for the Veteran’s PTSD. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of examination. It is the responsibility of the rating specialist to interpret reports of examinations in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Under the provisions of Diagnostic Code 9411, a 70 percent rating is assignable 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 work like setting); inability to establish and maintain effective relationships. Id. A rating of 100 percent is assignable for 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. Id. 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because 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, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). 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. Vazquez-Claudio, 713 F.3d at 118. The Veteran’s VA treatment records reflect he began to seek treatment for psychiatric symptoms in June 2014. On April 2017 VA examination, the examiner noted diagnoses of PTSD and Alcohol Use Disorder and indicated it was possible to differentiate the symptoms. However, the examiner said such a distinction could not be made when determining which portion of occupational and social impairment was related to which disorder. She found the impairment due to PTSD was mild to moderate, the impairment due to the alcohol disorder was moderate; the combined impairment was moderate to severe. The examiner characterized the Veteran’s overall level of impairment as occupational and social impairment as reduced reliability and productivity. The Veteran reported that he received rehabilitation for alcohol abuse twice and that while he requested VA psychiatric treatment in 2014, he denied receiving any mental health treatment. The examiner found the Veteran had symptoms depressed mood, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stress circumstances including work or a worklike setting. The examiner noted additional symptoms attributable to the PTSD hypervigilance, irritability, and intrusive memories. He also reported sometimes hearing people talking to him, but he cannot distinctly hear what is being said or who is saying it. She described that the Veteran’s sleep had become so disordered that he will sleep at random times during the day or night. She also noted the Veteran had feelings of detachment or estrangement from others and irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression towards people or objects. The examiner found the Veteran was capable of managing his financial affairs and did not appear to pose any threat of danger or injury to himself or others. She observed that the Veteran presented with some truculence and had difficulty telling his story sequentially. The initial 50 percent rating was assigned in the July 2017 rating decision on appeal, effective May 26, 2015. Based on a review of the record, the Board concludes that an initial rating of 70 percent for PTSD is warranted. The April 2017 VA examination, the Veteran’s PTSD resulted in symptoms including depressed mood, chronic sleep impairment, hypervigilance, irritability, and outbursts of anger. The Veteran also reported hearing voices, and the examiner noted he had difficulty telling his story sequentially. While the examiner could differentiate PTSD symptoms from those related to the alcohol disorder, she was unable to make such a distinction when it came to the resulting overall impairment. That was characterized as moderate to severe. The Board finds the Veteran’s symptoms and functional impairment revealed deficiencies in areas of work, school, family relations, thinking, and mood due to symptoms such as impaired impulse control, difficulty in adapting to stressful circumstances, neglect of personal appearance and hygiene, and the inability to maintain effective relationships. A 70 percent rating is warranted. An evaluation higher than 70 percent is not warranted because the effects of the symptoms do not more closely approximate the disability picture contemplated by a 100 percent rating. 38 C.F.R. § 4.130, Code 9411. The evidence does not show the Veteran is unable to function both mentally and behaviorally, that his symptoms are productive of a danger of physical harm to himself or others. There is no evidence of gross impairment his cognitive functions and behavior or the preclusion of simple activities of daily living. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel