Citation Nr: 18156450 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 14-34 655 DATE: December 10, 2018 ORDER Entitlement to service connection for residuals of pneumonia, including multiple pulmonary nodules, is granted. Entitlement to service connection for hypertension is granted. Entitlement to a compensable initial evaluation for left knee surgical scars is denied. Entitlement to an initial evaluation in excess of 30 percent for migraine headaches is denied. Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an increased initial evaluation for osteoarthritis of the cervical spine and cervical retrolisthesis, rated noncompensable prior to September 16, 2013; 10 percent disabling from September 16, 2013 to January 8, 2015; and 30 percent disabling since April 1, 2015, is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU rating). FINDINGS OF FACT 1. The Veteran’s residuals of pneumonia, including multiple pulmonary nodules, began during active service. 2. The Veteran’s hypertension is proximately due to his service-connected sleep apnea. 3. Since the initial grant of service connection, the Veteran’s left knee surgical scars have not covered an area greater than 6 square inches, were not painful or unstable, and did not result in any disabling effect or functional impairment. 4. Since the initial grant of service connection, the Veteran’s migraine headaches have been manifested by prostrating attacks occurring once every month, which are not productive of severe economic inadaptability. 5. Since the initial grant of service connection, the Veteran’s PTSD has not been productive of total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of pneumonia, including multiple pulmonary nodules, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for secondary service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for an initial compensable evaluation for left knee surgical scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7805. 4. The criteria for an initial evaluation in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 8100. 5. The criteria for an initial evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1981 to February 2012. For his meritorious service, the Veteran was awarded (among other decorations) the Legion of Merit, the Bronze Star Medal, the Southwest Asia Service Medal, and the Combat Action Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). REFERRED The issue of entitlement to a left knee disability, other than surgical scars, was raised in a January 2012 claim and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Specifically, the Veteran contends that he has degenerative changes in his left knee as documented in an October 2012 x-ray examination of the left knee and this aspect of his current left knee disability has not been addressed. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2017). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service, and hypertension becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Service connection may also be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Further, a disability that is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (2017). 1. Entitlement to service connection for residuals of pneumonia, including multiple pulmonary nodules. The Veteran contends that he developed pulmonary nodules as a result of having pneumonia during service. He reports having to undergo follow-up visits to monitor the growth of these pulmonary nodules twice per year ever since. The Board concludes that the Veteran has a current diagnosis of residuals of pneumonia, including multiple pulmonary nodules of the bilateral lungs, that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A review of the Veteran’s service treatment reports revealed inservice treatment for pneumonia in December 2006. A February 2007 x-ray examination of the chest revealed some persistent prominence of the left hilum, with clearing of the infiltrate in the left lower lung field with clearing of the blunting at the left costophrenic angle. A CT scan of the chest was recommended. A March 2007 CT scan of the chest revealed two small pleural based nodules in the left lower lobe. The Veteran was discharged from the service in February 2012. A June 2012 VA treatment report listed pneumonia on the Veteran’s chronic problem list. A December 2012 CT scan of the chest revealed two pulmonary nodules in the left lower lobe. A December 2015 CT scan of the chest noted findings of stable bilateral pulmonary nodules. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted for residuals of pneumonia, including multiple pulmonary nodules. 2. Entitlement to service connection for hypertension. The Veteran is seeking service connection for hypertension. He attributes this condition to his service-connected sleep apnea. Post service treatment records reflect a current hypertension. A February 2014 opinion letter from the Veteran’s VA physician noted that it was more likely than not that the Veteran had sleep apnea while on active duty service, and that his hypertension is related to this. Resolving all doubt in favor of the Veteran, service connection for hypertension, secondary to his service-connected sleep apnea, is warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are 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 many 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 questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 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). 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. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the appellant or obtained on his behalf be discussed in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to a compensable initial evaluation for left knee surgical scars. The RO assigned a noncompensable rating for Veteran’s service-connected left knee surgical scars under 38 C.F.R. § 4.118, Diagnostic Code 7805, which provides that scars are to be rated based on limitation of motion of the affected part. The Veteran’s service treatment reports revealed that he underwent a left knee arthroscopy with medial plica excision and open prepatellar bursectomy in April 2009. During the November 2017 VA examination, the examiner observed a single postoperative incisional scar on the left knee joint. It was noted to be linear, measuring 3.5 cm in length, and nontender to palpation. The VA examiner also noted that the scar did not result in any functional limitation, and did not impact the Veteran’s ability to work. During the February 2012 VA examination, the examiner observed three postoperative incisional scars on the left knee joint. All three scars were noted to be linear, measuring .5 cm in vertical length and 0.5 cm in horizontal width. The scars were superficial, not painful, and not unstable. The report noted that the scars did not result in any functional limitation and did not impact his ability to work. As noted above, the Veteran’s scars are currently rated as noncompensable under Diagnostic Code 7805, which provides that scars are to be rated based on limitation of motion of the affected part. 38 C.F.R. § 4.118. The Board finds this rating appropriate. The VA examinations of record, along with the Veteran’s post service treatment reports, do not reflect that the Veteran’s surgical scars result in any limitation of motion or loss of function. In fact, the evidence shows his scars have been asymptomatic throughout the pendency of the claim. As the evidence throughout the appeal period does not show any disabling effects due to the scars, a compensable rating is not warranted under Diagnostic Code 7805. Id. The Board considered other potentially applicable diagnostic codes for rating the Veteran’s postoperative scars of the left knee, but finds no higher rating is assignable under any other diagnostic code. To that end, his scars have been asymptomatic during the entire pendency of the claim, thus compensable ratings are not warranted under Diagnostic Code 7803 (scars, superficial, unstable) or Diagnostic Code 7804 (scars, superficial, painful on examination). Moreover, the scars do not exceed six square inches to warrant application of Diagnostic Code 7801 (scars, other than head, face, or neck, that are deep or that cause limited motion) or Diagnostic Code 7802 (scars, other than head, face, or neck, that are superficial and do not cause limited motion). Based on the foregoing, the Veteran is not entitled to a compensable rating for postoperative scars of the left knee. As detailed above, there is no evidence that the Veteran’s scars are deep or nonlinear, unstable or painful, or that the affected area is greater than 6 square inches. Further, the evidence of record does not show that the Veteran’s service-connected scars cause functional impairments of the left lower extremity. In summary, the Board finds the evidence does not support the assignment of a compensable rating for postoperative scars of the left knee at any time since the initial grant of service connection. 4. Entitlement to an initial evaluation in excess of 30 percent for migraine headaches. The Veteran’s service-connected migraine headaches have been rated as 30 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Pursuant to Diagnostic Code 8100, a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over a period of several months. The maximum rating of 50 percent is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The rating criteria do not define “prostrating.” Nor is there a definition provided by the U.S. Court of Appeals for Veterans Claims. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). According to DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed. 2007), “prostration” is defined as “extreme exhaustion or powerlessness.” Based upon a longitudinal review of the record, the Board concludes that an initial evaluation in excess of 30 percent is not warranted for the Veteran’s service-connected migraine headaches at any point during this appeal. The Veteran’s migraine headaches have been manifested by prostrating attacks occurring once every month, which are not productive of severe economic inadaptability. The Veteran’s migraine headaches have averaged less than once every two months since the initial grant of service connection. The Veteran’s November 2017 VA examination noted a diagnosis of migraine, including migraine variants. The report noted the Veteran’s complaints of 3 to 5 migraine headaches a week. He also reported receiving Botox injections and taking Fioricet and Sumatriptan to treat this condition. The VA examiner indicated that the Veteran has had characteristic prostrating attacks of migraine once every month on average over the last several months. The VA examiner noted that the Veteran’s migraines attacks did not result in severe economic inadaptability and did not impact his ability to work. The Veteran’s February 2012 DBQ examination for headaches noted his complaints of headaches. The VA examiner noted that the Veteran did not have characteristic prostrating attacks of migraine headache pain. The examiner also noted that the Veteran’s headache disability did not result in very frequent prostrating and prolonged attacks of migraine headache pain. The VA examiner further noted that the Veteran’s headache disability does not impact his ability to work. Thus, the frequency and severity of the Veteran’s migraine headaches do not warrant a higher rating herein. While the Veteran is competent to report symptoms such as headache pain, he has not described migraines of sufficient severity and frequency to warrant an increased evaluation in this matter. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the VA treatment records and VA examination reports do not indicate or otherwise suggest that the Veteran’s migraine headaches result in extreme exhaustion or powerlessness, or otherwise more nearly approximate characteristic prostrating attacks of the frequency required for an increased initial rating under Diagnostic Code 8100. While the Veteran has been prescribed medications for his headaches, the ameliorative effects of those medications were not considered in the Board’s finding that the Veteran’s migraine headaches were not manifested by characteristic prostrating attacks occurring less often than one per month over the last several months. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Additionally, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert, 1 Vet. App. at 55-57. 5. Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD). The Veteran is seeking an increased initial evaluation for his service-connected PTSD. The RO has assigned the Veteran’s PTSD an initial evaluation of 70 percent pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the governing regulatory rating criteria, PTSD is rated under a “General Rating Formula for Mental Disorders”. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this Formula, a 70 percent evaluation contemplates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activity; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting 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 name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by replacing references to DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV) with the fifth edition of the DSM (DSM-5). See 38 C.F.R. § 4.125, amended by 79 Fed. Reg. 45099 (effective Aug. 4, 2014). As the appeal was certified to the Board after this change, DSM-5 applies. See 80 Fed. Reg. 14, 308 (March 19, 2015). After a careful review of all the evidence of record, lay and medical, the Board finds that the Veteran’s PTSD has not been productive of total social and occupational impairment at any point since the initial grant of service connection. The Veteran’s most recent VA examination for PTSD, conducted in October 2017, noted that his symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal person hygiene. The examiner reported that the Veteran was married, and that his spouse was “quite supportive.” The Veteran also denied any legal or behavioral issues since his retirement from the Army. The VA examiner concluded that overall the Veteran’s occupational and social impairment can best be summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner found that the Veteran’s PTSD impairment was not consistent with total occupational and social impairment. The Veteran’s prior VA examination for PTSD, conducted in February 2012, noted his symptoms of anxiety, suspiciousness, mild memory loss, insomnia, nightmares, irritability, anger, sadness, depression, and isolation from others. The VA examiner concluded that overall the Veteran’s occupational and social impairment can best be summarized as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or, symptoms controlled by medication. VA post service treatment records are consistent with the VA examiners’ findings. In sum, the evidence does not reflect symptomatology resulting in total occupational and social impairment. Accordingly, the preponderance of the evidence is against assigning a disability rating in excess of 70 percent for PTSD at any point since the initial grant of service connection, and the doctrine of reasonable doubt is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. REASONS FOR REMAND 6. Entitlement to an increased initial evaluation for osteoarthritis of the cervical spine and cervical retrolisthesis, rated noncompensable prior to September 16, 2013, 10 percent from September 16, 2013 to January 8, 2015, and 30 percent since April 1, 2015. While the record contains contemporaneous VA examinations regarding the Veteran’s cervical spine disability, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements or pain on weight-bearing testing. 7. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities. The Veteran filed a formal claim seeking a TDIU rating in November 2018. Rice v. Shinseki, 22 Vet. App. 447 (2009). This issue must be adjudicated by the RO. The matters are REMANDED for the following action: 1. Send the Veteran VCAA notice that advises him about what is needed to substantiate a claim for a TDIU rating. Thereafter, the RO must take all appropriate actions to develop the Veteran’s claim. 2. Schedule the Veteran for an examination of the current severity of his osteoarthritis of the cervical spine and cervical retrolisthesis. The examiner must test the Veteran’s active motion, passive motion, and 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 his cervical spine disability alone and discuss the effect of the Veteran’s osteoarthritis of the cervical spine and cervical retrolisthesis 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). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. Yates, Counsel