Citation Nr: 18155592 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-24 830 DATE: December 4, 2018 ORDER New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for back disorder is denied. New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for neck disorder is denied. New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for right knee disorder is denied. Prior to October 1, 2018, an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is denied. As of October 1, 2018, a 70 percent rating for service-connected PTSD is granted, subject to the laws and regulations governing monetary awards. REMANDED Entitlement to a rating in excess of 10 percent for left knee chondromalacia is remanded. Entitlement to a rating in excess of 10 percent for left knee instability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. In a final rating decision issued in January 2002, the Agency of Original Jurisdiction (AOJ) denied service connection for back, neck, and right knee disorders. 2. Evidence associated with the record since the final January 2002 decision is cumulative or redundant of the evidence of record at the time of the rating decision and does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for a back, neck, or right knee disorder. 3. Prior to October 1, 2018, the Veteran’s PTSD was manifested by occupational and social impairment due to reduced reliability and productivity due to his psychiatric symptomatology, without more severe manifestations that more nearly approximated occupational and social impairment with deficiencies in most areas. 4. As of October 1, 2018, the Veteran’s PTSD was manifested by occupational and social impairment with deficiencies in most areas due to his psychiatric symptomatology, without more severe manifestations that more nearly approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. The January 2002 rating decision that denied service connection for a back disorder, neck disorder, and right knee disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for back disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for neck disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for right knee disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 5. Prior to October 1, 2018, the criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2018). 6. As of October 1, 2018, the criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1976 to September 1977. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions issued in March 2013 and May 2013 by a Department of Veterans Affairs (VA) Regional Office. The Veteran was scheduled to appear for a hearing before the Board in October 2018. The Veteran’s representative appeared and provided additional evidence in lieu of a hearing. The evidence includes a private medical report, which raises the issue of entitlement to a TDIU; therefore, it is raised by the record and properly before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). New and Material Evidence Entitlement to service connection for back, neck, and right knee disorders The Veteran seeks service connection for back, neck, and right knee disorders, to include as secondary to his service-connected left knee chondromalacia and instability (left knee disability). In pertinent part, the AOJ denied service connection claims for postoperative degenerative disc disease of the cervical and lumbar spine and right knee disability in a January 2002 rating decision, finding that the disorders were not related to service and were not due to and had not been aggravated by the service-connected left knee disability. The Veteran did not perfect an appeal regarding the service connection claims, and VA did not receive additional service treatment records or new and material evidence prior to the expiration of the appeal period. Therefore, the January 2002 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Since the January 2002 rating decision, the Veteran has submitted private treatment records, VA treatment records, and lay statements. Unfortunately, while the evidence is new, the Board finds it is not material. Specifically, the evidence does not suggest that any current back, neck, or right knee disorder may be related to service or that any of the disorders may be related to the service-connected left knee disability, to include on the basis of aggravation. The Board acknowledges the Veteran’s lay statements to medical providers asserting relationships between his disabilities and service and/or his service-connected left knee disability; however, his statements are duplicative of those considered at the time of the January 2002 rating decision. Moreover, while the Veteran is competent to report symptoms such as pain, he is not competent to provide a positive medical opinion concerning a nexus between his current back, neck, or right knee disorders and service or his service-connected left knee disability. Consequently, without evidence that is both new and material to the claims, the Board cannot reopen the claims for service connection for back, neck, and right knee disorders and the appeal must be denied. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Entitlement to an initial rating in excess of 50 percent for PTSD The Veteran seeks an initial rating greater than 50 percent for his service-connected PTSD, which has been rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The criteria for rating mental disorders generally, and PTSD specifically, are listed under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. The nomenclature in this rating formula is based on the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). During the course of this appeal, the VA amended the General Rating Formula for Mental Disorders and its adjudication regulations to remove outdated references to a previous version of the manual - the DSM IV. See 79 Fed. Reg. 149, 45094 (Aug. 4, 2014). The use of the DSM-5 will apply to all claims received by the VA or pending before the Agency of Original Jurisdiction (AOJ) on or after August 4, 2014, but does not apply to claims that have been certified for appeal to the Board or are pending before the Board as of that date, even if such claims are subsequently remanded to the AOJ. See id.; see also 80 Fed. Reg. 53, 14308 (Mar. 19, 2015). Here, the AOJ certified the Veteran’s appeal to the Board in October 2015, so the DSM-5 is for application. Under the General Rating Formula for Mental Disorders, a 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent evaluation 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; intermittently illogical obscure, or irrelevant speech; 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 evaluation 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. Id. The symptoms listed 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). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). The evidence includes a September 2009 behavioral health consultation record, which shows report of survivor’s guilt, bouts of extreme and at times unprovoked intense anxiety with loss of concentration, loss of interest, depressive moods, erratic appetite, and sleep disturbances. The Veteran had difficulty focusing on questions asked and was occasionally irritable in response to redirection. The provider observed that the Veteran had depressed and anxious mood and that his affect was congruent with his mood. His cognitive functions were intact, though he reported decreased concentration and focus. The Veteran was working on his degree in social work but was on medical leave of absence. The provider found that the results were suggestive of severe complicated symptoms meeting the criteria for several disorders, including PTSD, general anxiety disorder, panic disorder, and major depressive disorder. In November 2009, the evidence indicates the Veteran’s symptoms had improved. He reported that his concentration had been consistent but could be interrupted due to pain medication. He was unemployed but planning to return to school to finish his degree. He indicated that his mood had been balanced and that he did not have clinical problems, although he had been a little sad. He had survivor’s guilt and flashbacks. He also stated that since his car accident, he had become irritable and his frustration tolerance was low. He had never been suicidal or homicidal. The provider observed that the Veteran was well groomed. He exhibited mild psychomotor agitation. His speech was normal and his mood was “pretty good” with reactive affect. He was alert and oriented, and his insight and judgement were adequate. In April 2010, the VA provider noted that the Veteran’s depressive symptoms remained severe, general anxiety symptoms remained moderate to severe; and PTSD symptoms appeared to be in partial remission as he no longer met the avoidance/numbing criteria, although re-experiencing and hyperarousal remained problematic. Veteran reported no instances of panic attacks, and he confirmed that he subjectively felt that some symptoms had improved. At that time, his mood was depressed and anxious, and his affect was congruent with mood. A December 2011 VA treatment record reflects reports of sleep problem but that the Veteran’s PTSD symptoms were under better control. He had survivor’s guilt, occasional panic attacks, intrusive memories, and hypervigilance. He reported that his mood and hyperarousal symptoms were better. He denied having suicidal ideation and hallucinations. His judgment was adequate. The August 2012 VA examination report shows that the Veteran was single and had no children. He had good relationships with his family and friends. He had past romantic relationships that had lasted between three and five years. The examiner noted that the Veteran was involved in a motor vehicle accident in April 2009 and that his accident had exacerbated his PTSD symptoms. The Veteran withdrew from his degree program in 2011 due to medical concerns. He had not worked or attended school since that time. The Veteran’s symptoms included avoidance of anything that reminded him of his past trauma, markedly diminished interest or participation in significant activities, feeling of detachment or estrangement from others, restricted range of affect, sleep problems, difficulty concentrating, depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, mild memory loss, disturbances of motivation and mood, and obsessional rituals that interfered with routine activities. The examiner found that his symptoms caused occupational and social impairment with reduced reliability and productivity. Private treatment records dated in June 2016 show the Veteran was oriented and had labile mood, increased appetite, and sleep problems, but he had no difficulties with concentration, judgment, insight, thought content or process, or anxiety. A March 2017 letter from his private provider indicates that the Veteran’s PTSD and major depression were in remission. In October 2018, the Veteran had an assessment completed with a private provider. The provider indicated that he had reviewed the Veteran’s military records, claims file, and therapy records. The Disability Benefits Questionnaire (DBQ) shows diagnoses of PTSD and major depressive disorder. The provider indicated that the symptoms of both disorders overlapped, thus, he could not attribute certain symptoms to one diagnosis or the other. The Veteran’s symptoms included persistent avoidance of stimuli associated with the trauma, markedly diminished interest or participation in activities, feelings of detachment or estrangement from others, restricted range of affect, sense of foreshortened future, sleep difficulty, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. He also had depressed mood; anxiety; panic attacks weekly or less often; mild memory loss; flattened affect; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty establishing and maintaining effective relationships; suicidal ideation; impaired impulse control; spatial disorientation; persistent delusions or hallucinations; neglect of appearance; and intermittent inability to perform activities of daily living. The examiner indicated that the Veteran’s symptoms caused occupational and social impairment in most areas. The provider indicated that the Veteran should avoid seeking employment due to the severity of his symptoms. In a separate report, the examiner elaborated on the DBQ check-list, and stated that the Veteran was oriented to all spheres; was cooperative; and had tangential speech, congruent affect, and a calm, somewhat sad mood. The Veteran provided incorrect answers when asked to count backwards from 100 by 7’s indicating some impairment in abstract thinking. He had difficulty staying on topic and relating the chronological order of events. His thought content was scattered. The examiner stated that his judgment and insight were fair. The Veteran endorsed nightmares and insomnia and vague suicidal ideation. He reported that some days he would feel stressed out and just lie in bed and not do anything for a couple of days at a time. He experienced frequent flashbacks and dissociation as well as auditory hallucinations. He also saw shadows in his peripheral vision. The provider stated that the Veteran’s symptoms caused occupational and social impairment in most areas due to suicidal ideation, intermittently illogical speech, panic attacks, impaired impulse control, spatial disorientation, and hallucinations. The provider also observed that the Veteran neglected his personal appearance and hygiene, had difficulty in adapting to stressful circumstances, and was unable to establish and maintain effective relationships. The provider noted that the Veteran struggled to maintain relationships and hold jobs until he became physically disabled. He indicated that the Veteran was homeless. He found that the Veteran’s symptoms were consistent with diagnoses of PTSD and major depressive disorder, recurrent, moderate. The Board has reviewed all the evidence and finds that an initial rating greater than 50 percent is not warranted prior to October 1, 2018. During this period, the Veteran’s PTSD symptoms were not of the frequency, severity, and duration to cause occupational and social impairment in most areas. The Board acknowledges that the August 2012 VA examiner documented obsessional rituals that interfered with routine activities, a symptom listed under the criteria for a 70 percent rating. However, the examiner described the symptom as hypervigilant checking of his environment for safety. The evidence does not show that the Veteran’s hypervigilance in combination with his other symptoms caused deficiencies in most areas. The examiner found that the severity of the Veteran’s symptoms caused only occupational and social impairment with reduced reliability. Moreover, private treatment records dated in 2016 and 2017 show that the Veteran’s symptoms had improved, and were in remission as of March 2017. Consequently, the Board cannot find that the frequency, severity, and duration of the Veteran’s PTSD symptoms caused occupational and social impairment with deficiencies in most areas at any time prior to October 1, 2018. With respect to occupational impairment, the September 2009 record shows the Veteran was working on his degree in social work. In November 2009, the evidence indicates that although the Veteran was unemployed, he was planning on returning to school to finish his degree. Although the August 2012 VA examination report shows he had not worked or attended school since 2011, the record only indicates the Veteran “medically” withdrew. Further, the August 2012 VA examiner found the Veteran’s psychiatric symptomatology caused only occupational and social impairment with reduced reliability and productivity. Concerning social impairment, the record indicates the Veteran had good relationships with his family and friends and had been involved romantically during this period. Based on this evidence, the Board finds the Veteran’s PTSD, overall, was manifested by occupational and social impairment with reduced reliability and productivity due to his psychiatric symptomatology prior to October 1, 2018. However, as of October 1, 2018, the Board finds the criteria for a 70 percent rating for PTSD have been met. The DBQ and private physician’s report show a significant decline in the Veteran’s mental health. The provider opined that the Veteran’s symptoms caused occupational and social impairment in most areas due to suicidal ideation, intermittently illogical speech, panic attacks, impaired impulse control, spatial disorientation, and hallucinations. The Board also finds significant the documentation of an intermittent inability to perform activities of daily living and neglect of personal appearance and hygiene. However, the Board finds the Veteran’s PTSD did not manifest in total occupational and social impairment due to factors such 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; or memory loss for names of close relatives, own occupation, or own name. Although the record shows some neglect of personal appearance and hygiene, the provider did not document any other impairments related to activities of daily living. Consequently, the Board cannot find that the Veteran’s lack of adequate grooming is of the severity, when considered with all other factors, to find total occupational and social impairment. Additionally, although the provider noted that the Veteran struggled to maintain relationships and hold jobs, the Board finds highly probative the provider’s notation of only struggling to hold jobs until he became physically disabled. Further, although the record shows the Veteran was homeless, the provider found symptoms were consistent with PTSD and major depressive disorder of only a moderate nature. Further, the private provider did not find that the Veteran’s symptoms were of such severity to cause total occupational and social impairment. Based on this evidence, the Board finds a rating of 70 percent, but no higher, is warranted on and after October 1, 2018, for PTSD. REASONS FOR REMAND Entitlement to ratings in excess of 10 percent for left knee chondromalacia and left knee instability, respectively The Veteran seeks a rating greater than 10 percent for left knee chondromalacia with painful motion and a rating greater than 10 percent for left knee instability. In February 2013, the Veteran had a VA examination to determine the current severity of his left knee disability. In March 2016, he had surgery on the left knee for medial meniscus tear. The Veteran has not had an examination to determine the severity of his left knee disability since his surgery. Therefore, remand is required so that an examination of the left knee can be scheduled. Entitlement to a TDIU As noted in the introduction, the October 2018 private medical report raised the issue of entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19. The claimant’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. In this case, the Veteran has been assigned a 70 percent rating for PTSD as of October 1, 2018; therefore, he meets the criteria for a schedular TDIU on and after that date. However, as the development and adjudication of the increased ratings claims remanded herein could affect consideration of such entitlement, to include the effective date for an award of such, the Board finds the issues are intertwined. As such, adjudication of entitlement to a TDIU would be premature and the issue must be remanded. While on remand, the Veteran should be requested to complete and return VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and the AOJ should conduct any indicated development. The matter is REMANDED for the following actions: 1. The Veteran should be requested to complete and return VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). Thereafter, the AOJ should conduct any indicated development for the Veteran’s TDIU claim. 2. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for an examination to determine the current nature and severity of his service-connected left knee disability. The examiner must be provided access to the electronic claims file and indicate review of the claims file in the examination report. The examiner should review the March 2016 surgery notes and indicate whether the surgery and residuals are related to the service-connected left knee disability. All necessary testing must be completed. The examiner must test the Veteran’s active motion and passive motion, and indicate whether there is pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disability alone and discuss the effect of the left knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda G. Alderman