Citation Nr: 18151990 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-27 184 DATE: November 20, 2018 ORDER A rating in excess of 10 percent for right wrist distal fracture, status/post open reduction and internal fixation is denied. A rating in excess of 10 percent for left knee chondromalacia patella is denied. Service connection for posttraumatic stress disorder (PTSD) is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran had active service from June 1976 to July 1983, and from April 2008 to April 2009, with additional periods of reserve duty. 2. A right wrist disability has been manifested by subjective complaints of pain worse with some activities; ankylosis has not been shown 3. A left knee disability has been manifested by subjective complaints of pain and stiffness; objective findings include extension at worst between 100 and 0 degrees, and flexion at worst between 0 to 100 degrees without additional weakness, fatigability, or incoordination. 4. A diagnosis of PTSD is not shown. 5. The Veteran’s service-connected disabilities do not render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right wrist distal fracture, status/post open reduction and internal fixation have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5215 (2017). 2. The criteria for a rating in excess of 10 percent for left knee chondromalacia patella have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. § 4.71a, DCs 5256-5263 (2017). 3. PTSD was not incurred in or a result of active service. 38 U.S.C. §§ 1112, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 4. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2014); 38 C.F.R. §§ 3.321, 3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.   Right Wrist The Veteran’s left wrist disability is rated as 10 percent disabling under DC 5215, which provides a maximum 10 percent rating for limitation of motion. As such, a higher rating is not warranted under that diagnostic code. The Board has also considered whether a higher rating is warranted under DC 5214 for ankylosis (a fixation of the joint). However, the medical evidence does not support a higher rating. Specifically, clinical records and September 2016 and December 2017 VA wrist examinations found that the Veteran did not have ankylosis of the wrist. Moreover, he has reported pain which increases with some activities but not asserted that his wrist is ankylosed. All associated VA and private clinical records do not show a diagnosis wrist ankylosis. Therefore, the medical evidence does not support the claim for a higher rating. Left Knee The left knee disability is rated under DC 5261; however, the Board will consider all potentially relevant diagnostic codes. In order to warrant a higher rating, the evidence must show any of the following: • limitation of flexion to 30 degrees (20% under DC 5260); or • limitation of extension to 15 degrees (20% under DC 5261). Other diagnostic codes relating to the knee are DC 5256 (ankylosis), DC 5257 (subluxation or instability), DCs 5258 and 5259 (dislocation and/or removal of semilunar cartilage), DC 5262 (impairment of tibia and fibula), and DC 5263 (genu recurvatum). These disorders are not shown in the record such that application of these diagnostic codes is not warranted. Further, evidence of degenerative arthritis absent compensable limitation of motion was not shown, such that the provisions of DC 5003 are not for application. First, an increased rating is not warranted under DC 5261. In this respect, no limitation of extension was observed during a December 2017 VA examination. Additionally, a September 2016 examiner reported extension from 100 to 0 degrees. As such, the criteria for a higher rating have not been met under DC 5261. Additionally, a separate compensable rating is not warranted based upon limitation of flexion. During the December 2017 examination, flexion was noted to be normal to 140 degrees. The September 2016 VA examiner similarly found flexion to 100 degrees. Thus, a separate rating based upon limitation of flexion is not warranted per DC 5260. The Veteran’s primary reported symptom during the period on appeal was left knee pain and stiffness unaccompanied by additional weakness, fatigability, or incoordination. Related functional impairment was minor in nature, and limited to difficulty with prolonged walking, standing, squatting, twisting, and using stairs. These symptoms were largely managed with the use of medication and rest. Accordingly, the medical evidence does not support a higher rating. With respect to both increased rating appeals, the Board has considered the Veteran’s lay statements that his disabilities are worse than currently evaluated. While he is competent to report such symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of this disability according to the appropriate diagnostic codes, or make a finding of ankylosis. Such competent evidence concerning the nature and extent of the Veteran’s right wrist disability and left knee disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. Thus, the evidence demonstrates that the Veteran’s disability picture is best embodied in the criteria for the ratings as assigned, and higher or separate ratings are not warranted. Accordingly, the appeals are denied. Service Connection for PTSD Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. In addition to the laws and regulations outlined above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of a veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). The Veteran seeks service connection for PTSD. He alleges he experienced several stressors during service in Iraq, resulting in a current diagnosis of PTSD. Military personnel records (MPRs) confirm his active duty service in the Iraq theater of operations during service. However, service treatment records (STRs) do not reflect complaints of or diagnoses for PTSD or any associated symptomatology. Therefore, PTSD was not shown in service. Post-service medical records include October 2011, June 2013, November 2013, and October 2015 VA examinations. Each of the examiners determined that the Veteran did not meet the criteria for a diagnosis of PTSD. In November 2013, the examiner was asked to provide an opinion based on the discrepancies in the Veteran’s medical history as to whether a diagnosis of PTSD was present. After reviewing the record in its entirety, the examiner opined that it was less likely than not that the Veteran met the criteria for a PTSD diagnosis. The examiner reasoned that PTSD was added to the Veteran’s problem list in May 2012 and that at time there was no indication that the full criteria of the disorder was met. Further, at that time the Veteran was actively abusing cocaine and alcohol which would have made it inappropriate to diagnose PTSD, since those substance abuse problems could have partially or wholly accounted for the symptoms reported. The examiner stated that under the standard in the substance abuse field, the Veteran would have to live substance free for at least six months before psychiatric symptoms could be attributed to anything other than substance abuse. The examiner went on to discuss an instance where the Veteran was diagnosed with PTSD once more in July 2013 and stated that even though a diagnosis was rendered, there was no mention of any symptoms that would justify the diagnosis. Instead, the examiner only documented the Veteran’s worry about an ongoing conflict with a roommate. Next, a different July 2013 noted symptoms of depression and nightmares about an IED explosion which killed the Veteran’s friend. However, the examiner found that there continued to be no indication that the full criteria for PTSD were endorsed, and that the full diagnostic criteria were not documented at any point throughout his medical treatment record. Further, the examiner concurred with the finding of the June 2013 VA examiner who found that the Veteran did not meet the criteria for PTSD. Both examiners opined that while the stressors might have met the criteria for a diagnosis, there was no re-experiencing or avoidance symptoms and that diagnoses including depressive disorder, alcohol abuse and cocaine abuse were instead rendered. The absence of a diagnosis of PTSD was confirmed once more in October 2015 when the examiner reviewed the Veteran’s entire medical history and specifically found that while he had been previously given the diagnosis of PTSD, he did not meet the full criteria for a diagnosis. The examiner reasoned that the Veteran’s index stressors had changed over time, as well as his descriptions of his experiences while deployed to Iraq. Further, the examiner found that the presence of nightmares, which most of the diagnoses seemed to be based upon, was not sufficient for a diagnosis of PTSD. In addition, the examiner reasoned that the Veteran’s long history of mental health and substance abuse treatment dated back to 1998, beginning with reports of hallucinations which were more likely than not substance induced. In so finding, the examiner acknowledged the Veteran’s in-patient mental health care as well as the July 2014 letter by his VA treatment provider which showed diagnoses of PTSD. Importantly, the July 2014 VA letter by his treatment provider did not indicate that the Veteran’s diagnosis of PTSD was related to or a result of his active service or any fear of a hostile military. It also did not indicate whether the full criteria for a diagnosis were considered and satisfied. Similarly, VA treatment records noted that while some PTSD symptomatology was present, a diagnosis of PTSD was not warranted. Instead, depressive disorder and substance abuse disorders continued to be diagnosed. Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer, 3 Vet. App. at 225 (1992). A current disability means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997); see McClain, 21 Vet. App. at 319. Here, the medical consensus is that the Veteran does not have a diagnosis of PTSD. The Board has considered the Veteran’s lay statements that PTSD was incurred in service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer a diagnosis or opinion as to an etiology due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file, particularly the examiner who were asked specifically to address the issue of a diagnosis. Here, the Board attaches greater probative weight to the examination reports and clinical findings than to his statements. As such, the medical records are more probative than the Veteran’s lay assertions of a connection with service. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable and the appeal is denied. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 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) Disability 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. 38 C.F.R. § 4.16. The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a veteran is unemployable by reason of his or her service-connected disabilities, but fails to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must first refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service. In the present case, the Veteran has been granted service connection for a right wrist disability at 10 percent, left knee chondromalacia patella at 10 percent, tinnitus at 10 percent, and left ear hearing loss at noncompensable. His combined disability rating has been 30 percent for the entire appeal period. As the Veteran does not have one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and a combined rating of 70 percent or higher, the schedular criteria for TDIU are not met at any point during the relevant appeal period. As such, a TDIU is not warranted and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel