Citation Nr: 18155563 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-13 168 DATE: December 4, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and generalized anxiety disorder, is granted. Entitlement to a rating in excess of 10 percent for a right knee disability is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence indicates that it is at least in equipoise that the Veteran’s PTSD is at least as likely as not due to his period of service. 2. The evidence indicates that the Veteran’s right knee disability was manifested by full extension, flexion that was, at worst, 90 degrees, and that it has caused interference with standing or sitting, and pain contributing to additional functional loss or contributing to his disability. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD and generalized anxiety disorder, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304(f) 4.125. 2. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.25, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Marine Corps from September 2000 to May 2004. In August 2017, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. In November 2017, the Board remanded the appeal for further development. 1. Service connection for an acquired psychiatric disorder, to include PTSD and generalized anxiety disorder The Veteran contends that he has PTSD that is due to his period of service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. 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. 38 C.F.R. § 4.125. If the Veteran did not serve in combat, or if the claimed stressor is not related to combat, there must be independent evidence to corroborate a Veteran’s statement as to the occurrence of the claimed stressor. See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). Generally, the Veteran’s testimony alone cannot establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Furthermore, an opinion by a medical health professional based on post-service examination of the Veteran cannot be used to establish the occurrence of a stressor. See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). If a PTSD claim is based on in-service personal assault, evidence from sources other than a Veteran’s service records may corroborate his account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Id. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Moreover, it is well established that if a PTSD claim is based on an in-service personal assault, medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Specifically, 38 C.F.R. § 3.304 (f)(5), allows Veterans claiming PTSD from an in-service military assault to submit evidence other than in-service medical records to corroborate the occurrence of a stressor, and this includes medical opinion evidence. Menegassi, 638 F.3d at 1382; see also 67 Fed. Reg. 10,330, 10,330-31 (Mar. 7, 2002). Turning to the evidence of record, in a June 2013 VA medical record, a sleep medicine examiner noted possible PTSD symptoms such as recurrent dreams and some hypervigilance. In a July 2013 VA medical record, a VA psychiatrist note stated that the Veteran’s PTSD screen was positive for three of four items. The examiner noted that the Veteran denied suicidal ideation or hopelessness. In a February 2014 statement in support of a PTSD claim, the Veteran reported that he began experiencing anxiety after being physically restrained in a gas chamber exercise in November 2000. The Veteran stated that, as a result, he had claustrophobia, issues sleeping, and issues with personal relationships. In a July 2014 VA examination, the examiner found that the Veteran did not meet the criteria for PTSD. The examiner explained that the Veteran’s stressor did not result in fear of hostile military or terrorist activity, stating that the Veteran did not endorse symptoms related to his identified stressor incident. The examiner stated that the Veteran reports markedly heightened anxiety during exercise, but does not report fear of imminent danger/harm to self. The examiner reconciled the conflicting medical evidence from the June 2013 VA record regarding diagnosis, explaining that the comment was made by a sleep medicine fellow, not reflecting a full history/evaluation interview. However, the examiner did determine that the Veteran did have a diagnosis for generalized anxiety disorder. The examiner stated that it was not possible to establish whether or not his generalized anxiety disorder was related to his military service without resorting to mere conjecture. The examiner explained that based on record review, initial treatment for the condition was more than eight years following discharge from period of active duty. The Veteran was afforded a May 2016 VA examination to determine service connection for an acquired psychiatric disorder, to include a generalized anxiety disorder, secondary to the Veteran’s service-connected orthopedic conditions. The examiner determined that there is no evidence that anxiety was proximately related to or caused by the Veteran’s orthopedic conditions. The examiner stated that review of the record notes first mention of possible symptoms in 2008 in the course of treatment initiation for hypertension. The examiner further noted that there is insufficient evidence to suggest that any worsening of generalized anxiety disorder symptoms has been associated with the Veteran’s orthopedic conditions, noting that worsening of anxiety symptoms is fairly frequent in terms of the course of generalized anxiety disorder. In an August 2017 Board hearing, the Veteran stated that his gas chamber experience was traumatic. The Veteran stated that, from that time, he has not been able to be in small quarters. The Veteran also reported that, while he experienced symptoms during and after his period of service, he waited until 2013 to be treated for his mental health symptoms because he did not want to deal with it. The Veteran further explained that the death of a friend from the military caused him to seek help for his acquired psychiatric disorder symptoms. In a November 2017 VA mental health note, a psychiatrist gave diagnoses of generalized anxiety disorder, panic disorder, depression, and rule out PTSD. The examiner went on to state that she planned to follow up with her PTSD colleagues and inform the Veteran of possible treatments. In a December 2017 VA examination, the examiner stated that it was less likely than not that the Veteran’s generalized anxiety disorder was caused by or related to his period of service. The examiner explained that the Veteran’s military records showed no mental health treatment in the military. The examiner also reported that the Veteran was noted to have no mental health issues on exit examination from the military. The examiner stated that the Veteran first obtained mental health treatment in 2012, about eight years after he left the military. The examiner stated that there was no nexus between the Veteran’s current mental disorders and his military career. The examiner noted that it was difficult to determine the onset of the Veteran’s current psychiatric disorders. The examiner reported that, according to his military records, the onset of his psychiatric disorders did not occur during his military career nor at the time of his discharge. The examiner determined that the etiology of most psychiatric disorders is unknown and there was no clear etiology for the Veteran’s current mental disorders. Because of this, the examiner determined that the etiology of his current psychiatric disorders cannot be resolved without mere speculation. In a December 2017 private medical examination, the examiner stated that the Veteran met the DSM-V criteria for PTSD. The examiner reported that, while the gas-chamber drill is standard for all recruits in boot camp, it was more traumatizing for most recruits in that a superior attacked, assaulted and restrained the Veteran in the chamber, procedures more severe than the standard drill. The examiner stated that the attack made it truly traumatizing for the Veteran. Therefore, his stressor met the criteria. Having corroborated an in-service stressor due to personal trauma, the examiner further noted the Veteran’s symptoms of PTSD, reporting that the Veteran met Criteria A through H, such that a diagnosis of PTSD was established. The examiner further concluded that the Veteran’s PTSD was due to his gas-chamber drill traumas, which happened when he was in the military. In an August 2018 VA addendum opinion to the December 2017 VA examination, the examiner stated that the preponderance of evidence does not support a link between the Veteran’s current diagnoses and the Veteran’s military service. The examiner explained that, though the Veteran’s treatment records do discuss possible PTSD in a few notes, the majority of the notes do not document PTSD symptoms and do not diagnose PTSD. The examiner stated that the December 2017 private examiner is only one of several mental health providers who diagnosed PTSD. The examiner concluded, therefore, that the weight of the evidence should be given to the Veteran’s treating providers. The examiner went on to state that, according to the Veteran’s current medical treatment notes, he does not have a diagnosis of PTSD related to military trauma. The examiner states that the Veteran is diagnosed with generalized anxiety disorder and depression that does not appear directly linked to his military service. The examiner noted that onset of the anxiety and depression is difficult to pinpoint; however, the Veteran did not seek treatment until several years following his military discharge and did not endorse any mental health symptoms upon exiting the military. The examiner also stated that the mental disorders appear to exist separately from the Veteran’s difficulty with pain, and therefore, were less than likely as not secondary to his service-connected physical conditions. The examiner noted that the pain likely worsened the Veteran’s mood; however, it did not appear to have initiated the mental disorder. After review of the record, the Board finds that the evidence is at least equipoise that the Veteran has PTSD that is at least as likely as not due to his period of service. Although there is conflict regarding the Veteran’s diagnosis of PTSD, review of the record weighs in favor of medical findings that the Veteran has a diagnosis. The Veteran’s treatment records by his primary care providers, both psychiatric and non-psychiatric, note possibility of PTSD. While the July 2014 VA opinion and August 2018 addendum opinion state that there was no diagnosis of PTSD from his primary care providers, the primary care notes weigh in favor of the December 2017 private opinion which confirms diagnosis of PTSD. Moreover, the etiology and onset of the psychiatric disorders acknowledged in the various negative nexus opinions do not consider the lay statements of record which are competent to report onset of symptoms and asserts that etiology could not be determined without speculation. The December 2017 private examination, taking into account the lay statements of record, establishes an etiology of the acquired psychiatric disorders, to include PTSD, which is consistent with the Veteran’s mental health records. For these reasons, and giving the benefit of the doubt to the Veteran, service connection for PTSD is granted. 2. A rating in excess of 10 percent for a right knee disability The Veteran also contends that his right knee disability is such that it warrants a rating in excess of 10 percent. The Schedule for Rating Disabilities (Rating Schedule) is intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in 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, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, otherwise the lower rating will apply, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found- a practice known as “staged” ratings. In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the Veteran’s service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). The Veteran currently has a 10 percent disability rating under 38 C.F.R. § 4.71 Diagnostic Code 5261. Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, a 10 percent rating is warranted when flexion is limited to 45 degrees. 38 C.F.R. § 4.71a. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion of the leg is limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A maximum rating of 50 percent is warranted for extension limited to 45 degrees. Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes 5257, 5258, 5259, 5260, and 5261) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, semilunar cartilage dislocation, semilunar cartilage removal, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263. As an initial matter, the Board notes that the evidence in this case does not reflect and the Veteran does not allege that he has tibia or fibula impairment, semilunar cartilage dislocation or removal, genu recurvatum, or ankylosis. As such, those diagnostic codes are not for application. Turning to the evidence of record, in a September 2012 VA examination, the examiner reported initial right knee range of motion as follows: flexion at 0 to 125 degrees with objective evidence of painful motion beginning at 125 degrees, and no limitation of extension with no evidence of painful motion. The examiner reported that repetitive use testing was performed, stating that post-test range of motion was as follows: flexion at 0 to 125 degrees and no limitation of extension. The examiner endorsed the statement that the Veteran has additional limitation in range of motion of the knee and lower leg following repetitive testing. The examiner also stated that the Veteran had functional loss or impairment of the knee, describing the contributing factors of the disability as pain on movement and swelling. The examiner noted tenderness or pain on palpitation for joint line or soft tissues of the knee. The examiner stated that there was normal muscle strength and normal anterior, posterior, and medial lateral stability. The examiner further noted that there was no evidence or history of recurrent patella subluxation/dislocation. The examiner stated that imaging studies indicated no evidence of degenerative or traumatic arthritis or patellar subluxation. In an April 2014 VA examination, the examiner extracted range of motion results from the September 2012 examination. The examiner explained that the range of motion testing on the day of examination was not helpful for range of motion assessment due to the Veteran’s active resistance to flexion examination due to either anxiety or pain. The examiner noted that the Veteran actively resisted at 105 degrees of flexion for both knees, which is highly unusual for patellofemoral syndrome. The examiner further noted that three repeats all resulted in this active resistance, and since the VHA orthopedics care note did not include 3 repetitions, the examiner was unable to comment on repetitive usage. In an August 2017 Board hearing, the Veteran stated that his right knee locked up and gives out during various activities. He also reported inflammation, pain issues and weakness. The Veteran stated that he was precluded from standing, walking and kneeling. He also stated that he had pain while sitting, which caused him to fidget. In a December 2017 VA examination, the Veteran reported chronic knee pain. He reported sensation of clicks and pops, and nails or needles inside of his knees with walking stairs, squatting, and lifting. He reported that both knees were puffy and felt tight. The Veteran further reported flare-ups that cause limited motion due to pain. The examiner reported initial right knee range of motion as follows: flexion at 0 to 110 degrees and extension at 110 to 0 degrees. The examiner stated that range of motion itself contribute to functional loss in that the Veteran had limited motion by pain. The examiner went on to report that pain was noted on examination and caused functional loss. The examiner stated that there was pain with weight bearing and non-weight bearing and with passive motion bilaterally. The examiner also noted objective evidence of pain on palpation of the joint or associated soft tissue, which was described as all patellar structures mildly painful on palpation. The examiner reported no objective evidence of crepitus. The examiner stated that there was no additional functional loss or range of motion after repetitive testing. The examiner noted that the Veteran was not examined immediately after repetitive use over time, but the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. The examiner stated that pain significantly limited functional ability with flare-ups, describing flexion at 0 to 90 degrees and extension at 90 to 0 degrees during flare-ups. The examiner stated that there was no evidence of loss of muscle strength or muscle atrophy. The examiner also noted that there was no evidence of ankylosis, recurrent subluxation, lateral instability, or recurrent effusion. The examiner stated that there was normal anterior, posterior, and medial lateral stability. The examiner stated that the Veteran wore a brace as an assistive device with regular frequency. The examiner stated that the Veteran’s right knee condition had functional impact on standing, walking, lifting, and carrying, all expected to cause flares. After review of the record, the Board finds that a rating in excess of 10 percent is unwarranted. Throughout the appeals period, the Veteran has had flexion greater than 60 degrees and at no point was there evidence of extension limited to 10 degrees. However, as provided above, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant criteria when evaluating limitation of motion for joint disabilities. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca at 202. Here, the evidence indicates that the Veteran’s right knee disability has caused interference with standing or sitting, and pain contributing to additional functional loss or contributing to his disability. Therefore, the Veteran’s right knee disability more closely approximates to a 10 percent rating. A rating of 20 percent for a right knee disability is not warranted. Throughout the appeals period, the Veteran did not have flexion limited to 30 degrees, nor did he have an extension limited to 15 degrees, ankylosis of the knee, recurrent subluxation or lateral instability, or cartilage dislocation or removal. Therefore, the Veteran’s right knee disability does not approximate to a 20 percent rating. In reaching this decision, the Board has considered the Veteran’s lay statements in support of his claim. The Board notes that the Veteran is competent to report observations about the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the rating assigned. To the extent he argues his symptomatology is more severe, the Veteran’s statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted. REASONS FOR REMAND Entitlement to a TDIU is remanded. As of this decision, the Veteran has been granted service connection for PTSD. Prior to this decision, the Veteran did not meet the schedular criteria for a TDIU. As the Veteran has yet to be rated for his service-connected PTSD, and the evidence indicates that the PTSD may impact the Veteran’s ability to gain and follow employment, the issue of a TDIU is inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matter is REMANDED for the following action: After assigning a rating for the Veteran’s service-connected PTSD, readjudicate the claim of a TDIU. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ford, Associate Counsel