Citation Nr: 18151723 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-24 659 DATE: November 20, 2018 ORDER Entitlement to an initial rating of 50 percent, but no more for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s PTSD was productive of sleep disturbances, anger, isolation from others, anxiety, depressed mood, disturbances in mood and motivation, and panic attacks. CONCLUSION OF LAW The criteria for an initial rating of 50 percent, but no more for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1966 to September 1969, with service in Vietnam from December 1967 to November 1968. He died in November 2015, and the appellant, his surviving spouse, has been substituted as the claimant in this appeal in a January 2016 decision. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2016. Increased Rating The appeal period before the Board begins February 20, 2013, because the Veteran appealed the initial rating assigned in a February 2014 rating decision. The Veteran received a 10 percent rating under DC 9411. The appellant asserts that the Veteran was entitled to at least a 30 percent rating based on his PTSD symptoms. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). DC 9411 provides that PTSD is evaluated under the general rating formula used to rate psychiatric disabilities other than eating disorders, pursuant to 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. The use of the term “such as” in 38 C.F.R. § 4.130 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, when determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is still the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). A 30 percent rating is warranted where there is 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 normal conversation), 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). A 50 percent 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 maintain effective work and social relationships. A 70 percent rating is warranted where there is 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where 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. Here, the Board concludes that the Veteran’s PTSD symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity. The Veteran’s wife states that he displayed depressed symptoms two to three days a week and panic attacks at least once a week. See December 2016 Hearing Transcript. She also endorsed the following PTSD symptoms: sleep disturbance, disturbances of mood and motivation, decreased interest or participation in activities, stress, anxiety, anger, fear, and isolation from others. See December 2016 Hearing Transcript; January 2014 VA examination. However, the Veteran generally appeared to function satisfactorily with routine-behavior, self-care, and conversation. The January 2014 VA examiner noted that he is oriented to time place, and person with clear and fluent speech. At this examination, the Veteran also stated that he was sleeping, had an appetite, had no anger issues, and had depression every other month lasting a day or two. The Veteran did note that he felt anxious and disturbances in mood. His wife explained that the Veteran attempted to deal with his PTSD symptoms himself, but still suffered from nightmares, would scream and cry sometimes. See December 2016 Hearing Transcript. Despite his PTSD symptoms, once his depression cleared his wife reports that he would begin talking to her again and engage more. Id. Based on the severity and frequency of the Veteran’s symptoms, it appears the Veteran experienced reduced reliability in social interactions. Moreover, the Veteran did not exhibit occupational and social impairment with deficiencies in most areas or total occupational and social impairment. At the January 2014 VA examination, the Veteran denied paranoid thoughts, hallucinations, memory impairment, and anger. During the December 2016 hearing, the Veteran’s wife reports that he was angry all the time. However, the record does not support that his anger resulted in consistent deficiencies in most areas or total occupational and social impairment as his wife reports that once an episode of depressed mood subsided, his engagement with others was normal. The record also does not support that the Veteran’s anger exhibited outward manifestations resulting in periods of violence or grossly inappropriate behavior. As such, no more than a 50 percent rating is warranted for the Veteran’s PTSD. REASONS FOR REMAND The Veteran sustained significant trauma to his lower extremities as a result of participating in parachute jumps on a regular basis while serving in the 82nd Airborne Division. Indeed, his decorations include the Parachute Badge and was awarded incentive pay based on his parachute jumps. He was seen in service for left knee problems and was diagnosed as having right knee and left knee disabilities. After reviewing the record, the Board finds that a VA medical opinion is necessary to determine whether the Veteran’s right knee and/or left knee disability is related to or had its onset during service, to specifically include the trauma sustained due to the numerous parachute jumps during service. As such, his right knee and left knee disability claims must be remanded. Following the Board’s grant of 50 percent rating for PTSD, the Veteran does not meet the schedular rating for TDIU. Additionally, the claim being remanded here, entitlement to service connection for bilateral knee condition is inextricably intertwined with the claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the issue of entitlement to TDIU must be remanded for the RO to adjudicate the Veteran’s knee claims. The matter is REMANDED for the following action: 1. Obtain a VA medical opinion addressing whether it is at least as likely as not that the Veteran had a right knee and/or left knee disability that is related or had its onset in service. In responding to the above inquiry, the examiner must acknowledge and discuss the significant trauma the Veteran sustained to his lower extremities as a result of participating in parachute jumps on a regular basis while serving in the 82nd Airborne Division. The examiner must also acknowledge and discuss the Veteran’s award of the Parachute Badge and his receipt of incentive pay based on his parachute jumps. The examiner must also consider the lay statements submitted by the Veteran and the appellant. 2. If appropriate, consider whether to refer the Veteran’s TDIU claim to the Director, Compensation Service for consideration of assignment of an extraschedular TDIU rating under 38 C.F.R. 4.16 (b). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Ijitimehin, Associate Counsel