Citation Nr: 18155540 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-42 439 DATE: December 4, 2018 ORDER Service connection for a back disability is denied. Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. A 70 percent rating for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s back disability is not shown to have been diagnosed within one year after separation from service or been shown to have otherwise been caused by his active service. 2. The evidence does not support a finding that the Veteran has a left knee or a right knee disability that was diagnosed within one year after separation from service or been shown to have otherwise been caused by his active service. 3. The Veteran’s overall psychiatric symptomatology has shown to cause occupational and social impairment with deficiencies in most areas, but not total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for A 70 percent rating for PTSD, but no higher, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1998 to September 2005. 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 military service. 38 U.S.C.§ 1110; 38 C.F.R.§ 3.303. Service connection requires competent evidence showing: (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 or aggravated during service (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Back The Veteran is seeking service connection for his back disability, to include lower back pain, which he believes resulted from lifting heavy artillery shells during service. Service treatment records (STRs) show that the Veteran sought treatment for back pain in service. In September 2002, he reported pain in “right side mid-back”, which the medical officer suggested was likely associated with his kidney stone. In January 2005, the Veteran reported having experienced back pain for 3 weeks, which he believed was the result of doing push-ups and sit-ups during physical training. The lumbar exam at that time showed normal results and the Veteran was given some stretching exercises. In a Post Deployment Health Assessment report in June 2004, the Veteran specifically denied any back pain or muscle aches while reporting other conditions such as headaches and skin diseases. VA treatment records show that following service the Veteran first sought treatment for low back pain in July 2008 at which time he denied any injury to back. X-rays at that time showed degenerative change in L4 and L5 of the spine. Of note, records also show that the Veteran had denied any back problems in September 2007. The VA treatment records show that the veteran was seen by urgent care in September 2009, at which time he reported a history of right sided back pain, present for 2 months after working for a lumber company with heavy lifting. X-rays at that time showed osteoarthritic changes. The records also reveal that the Veteran continued to seek treatment for his back condition afterwards. As described, the evidence indicates that the Veteran has a current back condition, but does not show it was diagnosed for a number of years after service. Moreover, there is no showing of continuity of symptomatology as no back condition was shown at separation. As such, presumptive service connection does not apply here. However, service connection can still be established if a causal relationship is shown between the Veteran’s current back disability and the back pain he experienced in service. The Veteran was afforded a VA examination in November 2013. The examiner reviewed the Veteran’s case file, including STRs. The examiner noted that the Veteran had sought treatment for back pain during service. However, the examiner opined that the Veteran’s current back condition was less likely than not (less than 50 percent probability) caused by or a result of active service. The examiner reasoned that one episode of “right side back pain” in 2002 during service was due to kidney stone, which was not relating to a back condition at all, and which had resolved. The examiner noted that the Veteran denied any back complaint in the June 2004 Post Deployment Health Assessment report. The examiner also noted that the back pain the Veteran had in January 2005 during service was associated with physical exercises, and the back examination at that time was normal and the Veteran was given some stretching exercises. The examiner reasoned that the mechanical type back pain or lumbosacral strain that the Veteran experienced during service were episodes of acute back pain associated with specific activities or events, such as lifting heavy objects or overuse which were generally transient, self-limited and responded to rest and medication. Different episodes occurred independently and they were caused by different activities at different times, and were not related to nor caused by other prior episodes. The mechanical type back pain that the Veteran experienced in service did not cause degenerative disease of the spine, which was the current back condition that the Veteran had, as shown by the imaging performed in 2008, which was several years after he separated from service. This current back condition was a result of post-separation occupational, aging and lifestyle factors. The Veteran’s representative argued that the VA examiner’s opinion was inadequate because the examiner identified the Veteran’s back injury as a “mechanical type back pain” which according to the website www.spine-health.com/glossary/mechanical-pain, was defined as a “general term that refers to any type of back pain caused by placing abnormal stress and strain on muscles of the vertebral column,” while the Veteran was claiming a specific lumbar spine condition, not a general back condition. The Board finds that the online medical definition of “mechanical back pain” provided by the Veteran’s representative does not contradict or undermine the examiner’s opinion. Here, the examiner use “mechanical type” to describe the nature and etiology of the back pain that the Veteran experienced in service – the type of back pain caused by specific events such as heavy lifting or overuse. The examiner’s characterization of the in-service back pain is consistent with the “mechanical back pain” defined by the website as back pain “caused by placing abnormal stress and strain on muscles of the vertebral column”. The examiner clearly made a distinction between the Veteran’s current back condition from the “mechanical type” back pain he experienced in service. Therefore, there is no indication that the examiner was referring to the Veteran’s current back condition as a general condition. Furthermore, the examiner’s opinion is well supported by her careful examination of the medical records, including STRs. The examiner even listed the key medical evidence supporting her conclusion. As such, the Board finds that the examiner’s opinion in November 2013 is adequate and has not be contradicted or undermined by any competent medical evidence. Therefore, the weight of the evidence is against a finding that the Veteran’s current back condition was likely caused by or a result of his in-service back injury. Service connection is denied. Left Knee The Veteran is seeking service connection for his left knee pain, which he believes resulted from performing guard duty and physical training in service. STRs show that in November 2002, the Veteran reported a “pop” in the back of his left leg during physical training, and the medical officer diagnosed as a left hamstring strain. In a Post Deployment Health Assessment report in June 2004, the Veteran specifically denied any muscle aches, or swollen, stiff or painful joints while reporting other conditions such as headaches and skin diseases. The VA treatment records in 2016 and 2017 show reports of left knee pain, but no specific diagnosis was noted. The Veteran had acupuncture treatment in March 2017 for his back pain and knee pain. The records prior to 2013 do not show any records of complaints or treatments for the left knee. In November 2013, the Veteran was afforded a VA examination, at which he demonstrated full range of motion in left knee with no functional loss due to pain or repeated use. The examiner found that no left knee condition was diagnosed that the Veteran’s left knee was normal. For a service connection claim to be established, the Veteran must show to have a current disability. Here, although the Veteran has complained about his left knee pain, he does not have a specific diagnoses of a left knee condition. The Board also considered whether pain itself without underlying diagnosis could constitute a disability under Saunders v. Wilkie, No. 2017-1466, 2018 U.S. Appl. Lexis 8467 (Fed. Cir. Apr.3, 2018). However, in this case, there is no evidence showing that any left knee pain the Veteran has experienced has caused functional impairment to the left knee, therefore pain alone could not constitute a disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Furthermore, even if it were argued that the Veteran does have a left knee disability, the medical evidence of record does not associate the left knee condition with the Veteran’s military service. For example, the left knee injury in 2002 was related to left hamstring, not a left knee condition. Furthermore, the Veteran specifically denied any painful joints in a Post Deployment Health Assessment report in June 2004. The Board noted that the Veteran clearly took time to review the assessment questions as he reported having several conditions such as headaches and skin diseases. As such, it is reasonable to assume that had he been experiencing knee problems at that time, he would have reported them as he showed a willingness to report other problems. In sum, the evidence does not support a finding of a current disability of left knee or a nexus between reported left knee condition and any in-service event. Service connection for a left knee disability is denied. Right Knee The Veteran is seeking service connection for his right knee pain, which he believes resulted from performing guard duty and physical training in service. STRs show no record of complaints or treatment for a right knee condition. In a Post Deployment Health Assessment report in June 2004, the Veteran specifically denied any muscle aches, or swollen, stiff or painful joints while reporting other conditions such as headaches and skin diseases. The VA treatment records in 2016 and 2017 show reports of right knee pain, but no specific diagnosis was noted. The Veteran had acupuncture treatment in March 2017 for his back pain and knee pain. The records before 2013 do not show any records of complaints or treatments for the right knee. The Veteran and contended that he believed his right knee pain was related to his service and that he had been not given a VA examination for this condition. The Veteran’s representative argued that the Veteran should be afforded a VA examination. However, the evidence does not suggest that the Veteran’s right knee condition either begun during service or within 1 year after separation of service or otherwise related to service. The Board finds no basis to order a VA examination based on the Veteran’s statements alone. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Essentially, before the duty to provide an examination is triggered, the law requires the evidence of record to show that a condition may be the result of a Veteran’s service. While this is a low bar, it is a threshold evidentiary requirement, that is not met by the statements of the Veteran or his representative stating the current right knee pain is related to service, without more. Review of the evidence does not support a finding of a current disability of the right knee. As discussed before, pain alone without functional impairment will not constitute a disability under Saunders and there is no evidence suggesting a functional impairment of the right knee. Further, even if it were argued that the Veteran had a right knee disability, the medical evidence of record does not associate the right knee condition with the Veteran’s military service. There is no record showing that the Veteran’s right knee condition either began during service or within one year after the separation from service, and there is no competent medical evidence to suggest that it was otherwise caused by military service. Service connection for a right knee disability is denied. Increased Rating - PTSD The Veteran is currently rated at 30 percent for his PTSD under Diagnostic Code 9411. He is seeking for a higher rating. Under the General Rating Formula for Mental Disorders, a 30 percent evaluation is assigned when a veteran’s mental disability causes 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 9434. A 50 percent rating is assigned when a veteran’s mental disability causes 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 maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is assigned when a veteran’s mental disability causes 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); or an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is assigned when a veteran’s mental disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (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. Mauerhan, 16 Vet. App. at 442. Nevertheless, as 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 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 was provided with a VA examination in November 2013, at which he reported having gotten married in 2009 and divorced in 2010 without children. He reported that he was living with his mother. He reported having been employed at a lumber company for a year and half after separation from service in 2005. He was unemployed for 2-3 years afterward until he found a job at a moving company where he worked for a month and later her worked for a furniture company for a while. At the time of the examination, he was working at Burger King. The Veteran reported symptoms of depressed mood, anxiety and chronic sleep impairment. On examination, the Veteran was adequately groomed, fully oriented and his thought processes were logical. and he denied any suicidal or homicidal ideation or intent. The examiner concluded that the Veteran’s mental disability caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation), which was consistent with the 30 percent rating criteria. In a December 2017 private vocational assessment report, a vocational specialist concluded that due to the Veteran’s psychiatric conditions, he had not been able to perform any substantial gainful occupation within the general labor market since 2010. The vocational specialist pointed out that the Veteran was not able to maintain a job for any significant period of time due to his severe mental impairment, which was manifested by the Veteran’s frequent psychiatric hospitalizations for treatment of PTSD, Opioid and alcohol use disorder in July 2013, May 2014, May 2015, August 2016, and November 2016. VA treatment records show that the Veteran was admitted to psychiatric hospitalizations in November 2016, August 2016, May 2015, May 2014 and October 2013. A psychiatry evaluation note in March 2017 after the Veteran was discharged from his recent psychiatric hospitalization indicates that the Veteran has a history of depression, anxiety, insomnia, nightmares, drug and alcohol use. At the time of the evaluation, the Veteran was alert, calm, fully oriented and well-kempt. His mood was euthymic with a full and appropriate affect. Speech was normal in flow and goal directed. There was no evidence of a formal thought disorder. The Veteran denied any current delusions or perceptual disturbances. There was no evidence of current psychotic symptoms, mood instability, organic impairment or dangerousness to self or others. While the Veteran currently denied any current suicidal or homicidal ideation, he had 3 suicide attempts in the past- one occurred in 2006 when he deliberately ran his car off the road trying to hit a tree; one occurred in 2008 when he had thoughts of shooting himself, but could not find magazine; the last one occurred in 2009 when he deliberately committed drug overdose without seeking medical help. Given the Veteran’s psychiatric history and frequent mental health hospitalizations, the evaluating physician assessed that the Veteran’s suicide risk in short term was low, but in long term was moderate based on protective factors. Suicide risk would be significant if there is a relapse of substance abuse or alcohol abuse relapse. The physician recommended for continued treatment with different medications for the Veteran’s mood, nightmares, insomnia and anxiety. A doctor’s note in August 2016 documented a relapse incident that the Veteran had just 2 days after he was discharged from psychiatric hospitalization: after consuming a drink at the bar containing nicotine, the Veteran had an anxiety attack and his father had to take him to the ER at the VA medical center where he was confined in a padded room while tranquilized by medication. The Veteran admitted to the doctor at that time that he wished he was not alive, but he denied any intent or plan of harming himself. The Veteran submitted a statement in September 2015, stating that he had ups and downs with his PTSD symptoms. He had thoughts of suicide, but did not always tell the VA doctors because he was afraid that he would be locked up in the padded room. He had no current suicidal plans, just thoughts. He had angry burst with his mother and sister, and he stayed in his room all the times to avoid confrontational incidents due to his PTSD symptoms. He had few friends, only visit his father once a month. His insomnia wore him down, and he slept on a job once. He had problems interacting with people. His hygiene was getting worse, sometimes he did not shower for a couple of days and did not shave in a couple of weeks. The Veteran’s mother provided a statement in September 2015, stating that she had lived with the Veteran on and off for 5 years. After the Veteran came back from Iraq, he became very moody and hard to get along with. He sometimes yelled and screamed, and threw things. He got aggressive with a neighbor at one time with a knife in his pocket. The Veteran’s mother feared that her son’s condition could get to the point where he might hurt her. The Veteran’s step-father provided a statement in September 2015, stating that he helped the Veteran to find jobs but the Veteran could not hold on to any of them. He could not work with his coworkers, supervisors or customers due to his anger problems. He was like a time bomb. The Veteran lost control at work on several occasions and had to be taken home. Records indicated that that the Veteran last worked in 2014 in furniture sales business, he worked in fast food service in 2013, and he worked at Burger between 2009 and 2011. The Board finds that the Veteran’s overall psychiatric symptomatology was consistent with a 70 percent rating. As discussed above, a 70 percent evaluation is assigned when a veteran’s mental disability causes 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 or near continuous panic or depression. Evidence suggests that the Veteran has suicidal ideation and had suicidal attempts in the past. Although he repeatedly denied suicidal ideation to the VA doctors, he admitted that he did so because he was afraid of being confined in the mental health facility. The medical professional made the assessment that the Veteran’s suicide risk is moderate in the long term, and could become severe if his alcohol abuse and substance abuse relapses, which had happened multiple times between 2014 and 2016 when he had to be hospitalized for psychiatric treatment. The Veteran could not maintain an employment for long period of time because his could not get along with his coworkers, supervisors and customers due to un-controlled mood problems such as anger and anxiety attacks as well as tiredness from insomnia. His has difficulty maintaining social relationship with others. He is divorced and does not have many friends. He isolates himself by spending most of his time in his room and he had hard time to get along with his family members such as his mother and sister. As such, the Board finds his PTSD symptoms has caused occupational and social impairment, with deficiencies in most areas. A 70 percent rating is granted, subject to the laws subject to the laws and regulations governing the award of monetary benefits. However, a total rating is not warranted because he does not have total occupational and total social impairments as required by the total rating criteria. Here, despite having issues with family member due to his psychiatric conditions, the Veteran is still able to maintain a relationship with his mother and step-father, and he has been living with them for several years. He also visited his father once a month. The 2013 VA examination and the 2017 psychiatric evaluation indicated that the Veteran was fully oriented with appropriate affect, his thought process was logical and his cognition, memory, insight and judgment were normal. Although he reported having hygiene issues, there is no evidence suggesting that he could not handle his daily activities independently. Thus, the evidence does not support a finding of total social impairments. As such, a total rating for PTSD is not warranted. REASONS FOR REMAND The Board noted that a September 2016 rating decision denied the Veteran’s claim for TDIU, and the appeal for this decision has not been perfected to the Board. However, the Board has considered the issue of TDIU because the private vocational assessment report in December 2017 suggests that the Veteran could not obtain or maintain substantially gainful employment, therefore, an inferred claim for TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The TDIU claim should be re-adjudicated. The matter is REMANDED for the following action: Adjudicate a claim for TDIU. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Q. Wang, Associate Counsel