Citation Nr: 18151331 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 12-22 893 DATE: November 16, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. An initial disability rating of 50 percent, but no higher, for unspecified trauma stressor-related disorder (previously evaluated as adjustment disorder, chronic with mixed depression and anxiety) from September 9, 2010 is granted. REMANDED Entitlement to service connection for left knee degenerative arthritis is remanded. Entitlement to service connection for right knee degenerative arthritis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the medical evidence shows a diagnosis of PTSD based on a claimed in-service stressor. 2. The Veteran’s acquired psychiatric disorder was manifested by occupational and social impairment with reduced reliability and productivity. It was not manifested by occupational and social impairment in most areas or total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria to establish service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The criteria for an initial disability rating of 50 percent, but no higher, for unspecified trauma stressor-related disorder (previously evaluated as adjustment disorder, chronic with mixed depression and anxiety) have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9410 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to April 1974. He appeals an April 2011 rating decision by the Agency of Original Jurisdiction (AOJ) denying service connection for PTSD and bilateral knee arthritis. He was also granted service connection for adjustment disorder, chronic with mixed depression and anxiety with an evaluation of 10 percent effective September 9, 2010. In a March 2018 rating decision, the AOJ increased the Veteran’s disability rating for unspecified trauma stressor-related disorder (previously evaluated as adjustment disorder, chronic with mixed depression and anxiety) from 10 percent to 30 percent, effective January 31, 2018. The AOJ also denied entitlement to TDIU. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran and his wife testified at an October 2015 Board hearing. A transcript is of record. In September 2016, the Board remanded the Veteran’s claims to the AOJ for further action consistent with the Board’s remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives as to the initial increased rating acquired psychiatric disorder and PTSD service connection claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran claims he has PTSD caused by fear of hostile military or terrorist activity related to his service in Thailand. See February 2018 VA examination report. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2017). Within the legal framework for evaluating claims of service connection for PTSD, the sufficiency of a stressor is a medical determination, while the occurrence of the stressor is a legal determination. Sizemore v. Principi, 18 Vet. App. 264 (2004). The Veteran obtained years of psychological treatment through VA’s readjustment counseling service (RCS). There, he was diagnosed with PTSD secondary to his experiences in service. See, e.g., October 2013 VA RCS treatment record. In contrast, a February 2018 psychologist opined that “based on current examination, Veteran does not meet full DSM-5 diagnostic criteria for a diagnosis of PTSD; however, he is endorsing subthreshold PTSD-like symptoms which he attributes to his service in Thailand during the Vietnam War.” See February 2018 VA examination report (emphasis added). The evidentiary record shows that while the Veteran was diagnosed with PTSD during the pendency of the appeal, he is no longer diagnosed with the condition. See February 2018 VA examination report. Nevertheless, the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a disability compensation claim is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Hence, giving the Veteran the benefit of the doubt, the Board finds the Veteran had PTSD during the pendency of the appeal. As to the in-service stressor element, the Veteran reported there were OCC snipers in the distance from his base in Thailand, and he would hear bullet shots. See February 2018 VA examination report. Further, he stated an alarm would sound in case “something blew up.” Id. While a request to the Joint Services Records Research Center (JSRRC) showed that the Veteran’s unit was deployed to Takhli Royal Thai Air Force Base during the Veteran’s tour, the history and historical information of his unit did not report that the base was “attacked by enemy mortars during the specified time period.” See November 2017 DPRIS response (emphasis added). Importantly, the JSRRC did not confirm nor deny enemy sniper fire near the base. Nevertheless, a February 2018 VA psychologist noted that the Veteran’s alleged stressor is adequate to support a diagnosis of PTSD and related to the Veteran’s fear of hostile military or terrorist activity. Without clear and convincing evidence to the contrary, lay testimony, alone, may be sufficient to establish the occurrence an in-service stressor related to fear of hostile military activity. See 38 C.F.R. § 3.304(f)(3). The evidentiary record corroborates the Veteran’s account of being in Takhli Royal Air Force Base from September 1972 to March 1973. See military personnel record. There is not clear and convincing evidence to the contrary involving the Veteran’s in-service sniper fire stressor. Further, the JSRRC response confirmed that the Veteran’s unit went to Takhli Royal Air Force Base while the Veteran was on active duty. See November 2017 DPRIS response. Hence, in this particular case, the Veteran’s lay statements are sufficient to establish his in-service stressor as the record does not contain clear and convincing evidence to the contrary. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds there is expert evidence of record establishing a link between the Veteran’s PTSD and his in-service stressor. Accordingly, the Board grants service connection for PTSD. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Here, the Veteran contends that his acquired psychiatric disorder is more severe than his assigned disability rating would indicate. He was granted service connection effective September 9, 2010. As stated above, the AOJ first labeled the Veteran’s service-connected acquired psychiatric disorder as adjustment disorder, chronic with mixed depression and anxiety before recharacterizing the disability as unspecified trauma stressor-related disorder. Further, pursuant to the Order above, the Veteran is also service-connected for PTSD. Hence, the Board will consider all of the Veteran’s psychiatric symptoms in evaluating his service-connected acquired psychiatric disorder. The Veteran’s acquired psychiatric disorder is rated under 38 C.F.R. §4.130, Diagnostic Code 9410. The rating criteria provide that a 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9410. A 50 percent rating is warranted for 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 effective work and social relationships. Id. A 70 percent 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. Id. A 100 percent rating is warranted 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 evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, 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, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Considering all relevant evidence, the Board finds that a disability rating of 50 percent, but no higher, for the Veteran’s service-connected acquired psychiatric disorder is warranted. The Veteran has exhibited occupational and social impairment with reduced reliability and productivity. Here, the Veteran has had extensive psychiatric treatment through VA RCS. See, e.g., October 2013 VA RCS record. He has consistently endorsed the following symptoms: (1) anxiety; (2) irritability; (3) feelings of worthlessness; (4) transient depression; (5) nightmares; (6) dislikes loud noises; (7) easily startled; (8) hypervigilance; (9) annoyed while driving; and (10) decrease in concentration. See February 2018 VA examination report; see also January 2011 VA examination report. The January 2011 VA clinician described his symptoms as “moderate in severity.” See January 2011 VA examination report. His wife corroborated these symptoms, stating that the Veteran had nightmares, sleep disturbance, irritability, and people “walk on eggshells” near him. See February 2015 wife statement. Further, his mood changes on a whim; specifically, the Veteran could be “sitting, fine, one minute and then call for [her] to hold him while he ‘breaks down’ in tears the next minute and not know why.” Id. Nevertheless, while the Veteran may have difficulty in establishing and maintaining effective work and social relationships evidenced by his desire to work alone, he is not unable to establish and maintain effective relationships. See October 2015 Hearing Transcript at 22. The Veteran has been married for nearly 48 years, and has good relationships with his wife and children. See February 2018 VA examination report. He also loves his grandchildren, and has friends. Id. Importantly, The Veteran socializes with fellow congregants at his church, and is a volunteer pastor. See id.; see also October 2015 Hearing Transcript at 22. Additionally, the Veteran has exhibited normal orientation, appearance, concentration, thought content and process, while showing adequate insight and judgment. See February 2018 VA examination report. Further, as stated above, the Veteran has not exhibited total social impairment. The Veteran has been married for almost 48 years and turns to his wife for emotional support. Id. He participates actively at church and does not exhibit gross thought or concentration lapses. Further, he does not have persistent delusions or hallucinations. Likewise, the Veteran has not endorsed suicidal or homicidal ideation, and has stated in multiple mental health visits that he is not a persistent danger of hurting himself or others. Importantly, the Veteran also remembers his own name. While the Veteran does exhibit some symptoms contemplated in occupational and social impairment with deficiencies in most areas, the symptomatology is not of sufficient severity, frequency, and duration to result in a rating higher than 50 percent. Hence, the criteria for a finding of a 70 or 100 percent evaluation are not met. Based upon Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran’s symptoms have remained constant at 50 percent levels for his acquired psychiatric disorder, staged ratings are not warranted. Thus, the Board finds that the criteria for an increased disability rating of 50 percent, but no higher, are met. See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Bilateral Knees The Board remands these issues to ensure substantial compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Board instructed the AOJ to obtain an opinion as to whether the Veteran’s degenerative joint disease of the knees, or any other diagnosed knee disorder, began during, or as a result of, the Veteran’s active duty service. See September 2016 Board remand. In rendering her opinion, the clinician was to discuss the Veteran’s in-service treatment for a right knee meniscus injury, as well as the diagnosis of chondromalacia patella assigned at the Veteran’s February 1974 separation examination. Further, and especially relevant, the clinician was to discuss “the Veteran’s credible contentions regarding continuity of symptomatology of his knee problems from his time in service to the present.” Id. First, the Board notes that the VA clinician did not discuss the Veteran’s lay contentions regarding his knee symptoms at all. See February 2018 VA examination report. Further, the VA clinician, though noting that the Veteran had degenerative arthritis in both knees, limited her discussion to the Veteran’s right knee. Id. Instead of following the Board’s instructions and discussing the Veteran’s lay evidence, the VA clinician pointed to a lack of documentation to support her conclusion that the Veteran’s bilateral knee arthritis is not related to service. Specifically, she did not discuss the Veteran’s testimony regarding wear and tear on the flight line as an aircraft mechanic. See October 2015 Hearing Transcript at 10. The clinician also did not discuss a tissue examination taken in 1994 showing degenerated cartilage, fibrous connective tissue and synovial membrane, and a right knee meniscal tear. See June 1994 tissue examination report. Further, upon medical treatment in May 1994, the Veteran reported a history of “popping knee out of joint.” See April 1994 VA treatment record. As such, the clinician improperly discounted the Veteran’s lay testimony and relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion; such an opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Board also notes that the clinician stated there was no documentation in the service treatment records of “limitations, restrictions, profiles, etc. due to the right knee.” See February 2018 VA examination report. However, the Veteran testified at his hearing that he had the entire day off because of his right knee injury. See October 2015 Hearing Transcript at 9. Further, there is evidence the Veteran complained of knee pain at separation, and self-treated with heat in service. See February 1974 report of medical history. An opinion based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993). Thus, an opinion is required on remand to address the Veteran’s complaint of bilateral knee pain in service and at separation, as well as his continuing symptoms since. 2. TDIU The Veteran claims he cannot work in part because of his knees. See September 2018 Appellant’s Brief. Specifically, the Veteran claims that arthritis in his knees prevented him from driving trucks which is why he had to stop working in the first place. Id.; see also Hearing Transcript at 21. As the TDIU claim is premised in part on whether the Veteran is service-connected for his bilateral knees, the issue of TDIU is inextricably intertwined with those issues. Accordingly, the Board will defer adjudication on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his bilateral knee symptoms that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran’s bilateral knee disabilities. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The opinion must include a notation that this record review took place. It is up to the discretion of the clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary by the clinician, the VA clinician should identify all bilateral knee disabilities present. Then, the VA clinician is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran’s bilateral knee disabilities were incurred in, or are otherwise related, to his time on active service, to include his duties as an aircraft mechanic and an in-service knee injury? In rendering this opinion, the clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. Further, the clinician is to discuss the Veteran’s military duties, general wear and tear from work on concrete as an airplane mechanic, in-service treatment for a right knee meniscus injury, and documented complaints of bilateral knee pain at separation. This includes a discussion of lay evidence attesting to continuity of the Veteran’s symptoms since separation. The clinician is also to discuss degenerate cartilage from a 1994 tissue examination and the Veteran’s reported history of a popped right knee as of 1994. For the purposes of this opinion, the clinician is to assume the Veteran credible as to the facts surrounding the continuity of his symptoms. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel