Citation Nr: 18156752 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 09-30 402 DATE: December 11, 2018 ORDER Evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Service connection for left knee degenerative joint disease with arthralgia is remanded. Service connection for right knee total knee replacement is remanded. Service connection for left ear hearing loss is remanded. Service connection for chronic obstructive pulmonary disease is remanded. Entitlement to a total disability evaluation based upon individual unemployability is remanded. FINDING OF FACT PTSD did not result in occupational and social impairment worse than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active service from February 1971 to February 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2009, June 2011, and September 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A Board decision in August 2017 denied the Veteran’s claim of service connection for left ear hearing loss. The Veteran thereafter appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in September 2017, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, to vacate the Board’s decision and remand the case for readjudication in accordance with the JMR. Further details of the JMR holding will be discussed in the Reasons for Remand section below. After the last RO adjudications of the issues in February 2018 and August 2018, new evidence was associated with the claims folder. In September 2018 and October 2018, the Veteran’s attorney submitted a waiver of the Veteran’s right to have this evidence initially considered by the RO. Accordingly, the Board may consider this evidence in the first instance. See 38 C.F.R. § 20.1304 (2017). In March 2016 and August 2017, the Board remanded the issues of service connection for COPD, left and right knee disorders, to the Agency of Original Jurisdiction. In March 2016, the Board remanded the issue of left ear hearing loss, and in August 2017, the Board remanded the issue of a total disability rating based upon individual unemployability (TDIU). The development has been completed and the issues are back before the Board for further appellate review. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Evaluation in excess of 50 percent for posttraumatic stress disorder In August 2017, the Board granted service connection for PTSD based on the presence of military stressors, even though the Veteran had for many years been disabled from PTSD due to an industrial accident. The military-related stressors were not recognized medically until April 2009. See April 2009 VA treatment record. After the Board’s grant of service connection, the RO assigned a generous 50 percent evaluation, given the lesser severity of the military-related PTSD. See April 2009 statement from treating physician. The award was effective November 20, 2007, years before PTSD from service was apparent. The Veteran seeks a higher evaluation. The Veteran’s PTSD has been evaluated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. All psychiatric disorders are evaluated under the General Rating Formula for Mental Disorders, which provides for a noncompensable evaluation when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is warranted when there is 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 continuous medication. 38 C.F.R. § 4.130. A 30 percent rating is warranted when there is 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). 50 percent rating is warranted for 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; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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; and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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; 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. Use of the term “such symptoms as” in § 4.130 indicates that the list of symptoms that follows is non-exhaustive, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). This case came before the Board no earlier than August 5, 2014. Accordingly, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) controls. The DSM-5 does not use the Global Assessment of Functioning (GAF) scores and they will not be discussed. VA treatment records report PTSD as the result of an industrial accident in 1994. The Veteran denied military-related PTSD until around April 2009, at which time his treating clinician evaluated him for military-related PTSD. Initially, therefore, the Board notes that the symptoms reported prior to April 2009 are applicable essentially only to the civilian component of the Veteran’s PTSD. However, given the 50 percent evaluation as compared to the symptoms in this case, even if the Board attributes the symptoms prior to April 2009 wholly to the military stressor, the result is the same. Specifically, a March 2007 VA psychiatric treatment note showed the Veteran to be casually dressed and groomed, and not in distress. He related and interacted appropriately, and did not make much eye contact, which was normal for him, according to the clinician. The clinician found speech to be clear, coherent and sensible. Speech speed was normal. Mood was “okay,” affect was pleasant, but blunted. No suicidal or homicidal thoughts were elicited. The Veteran was future oriented. Hallucinations and delusions were not elicited. The Veteran was alert and oriented, and able to give a history. Judgment and insight were okay. The clinician found that symptoms of PTSD were somewhat controlled. There were no psychotic indicators or gross cognitive impairment. VA treatment visits in October 2007, January 2008, May 2008, September 2008, and December 2008, were comparable. The December 2008 treatment note reported the Veteran was “taking it day to day,” and getting depressed but not suicidal. The Veteran spoke about having gifts for his twin grandchildren. He noted that he was forced to treatment for his drinking or he would have lost his social security disability benefits. In a December 2008 treatment plan, the Veteran reported feeling detached from others. In a VA treatment note in April 2009, VA treating psychiatrist Dr. P.S.S. reported having mostly treated him for PTSD from an industrial accident, so she could not write a letter regarding PTSD in the military until a further appointment was scheduled. The Veteran’s mental status was similar to that reported above, except his mood was dysphoric. Later in April 2009, the Veteran sought treatment for identification of a possible trauma in the military, in which was seeing a man run over by a tracked vehicle. Symptoms were intrusive thoughts about the soldier who was killed and worry as to whether anyone saw the accident. The Veteran stated that it was hard to know how he was affected by the event because he was drunk all of the time. The report noted that treatment for the industrial accident was helping the Veteran to feel better and remain sober. The examiner found it to be unclear if the Veteran met the full criteria for PTSD from the military event. The mental status examination showed good eye contact and casual, but appropriate, dress. The Veteran related and interacted appropriately. Speech was clear, with normal rate and volume. Speech was goal and future oriented. The Veteran described his mood as “ok.” His affect was anxious. There were no psychotic indicators or gross cognitive impairment. Judgment was not impaired and insight was fair. The Veteran denied suicidal/homicidal ideation or plan. Shortly after this April 2009 appointment, treating psychiatrist, Dr. P.S.S., wrote a statement that she first began treating the Veteran in December 2000 for symptoms after an industrial accident in which his best friend was killed in a tow motor accident. She stated that over time, he also reported military related symptoms. She further stated that military-related PTSD symptoms were not as marked as with civilian-related PTSD symptoms. She did acknowledge that it is possible that his civilian trauma experience was more significant since it was similar to the trauma he experienced in the military. In an August 2009 VA record, the Veteran rated his depression as 5 out of 10. He denied homicidal and suicidal ideation. Nightmares were present almost every night. Treatment priorities were depressed mood, recurrent distressing dreams, and sleep disturbance. September 2009 records note the Veteran had not been sleeping at all. This was attributed to the use of bupropion in the afternoon. Sleep apnea and prescription for CPAP were noted, but the Veteran stated he had not been using it related to not having proper equipment. He declined therapy, as he reported more memories and flashbacks after meetings with the therapist. The mental status examination was similar to previous psychiatric treatment reports. Mood was dysphoric, affect was pleasant, but blunted. No suicidal or homicidal thoughts were elicited. He was future oriented. Hallucinations and delusions were not elicited. Symptoms of PTSD were found to be somewhat controlled. There were no psychotic indicators or gross cognitive impairment. Similar symptoms were reported in October 2009, January 2010, and February 2010, except as follows. In October 2009 VA treatment, sleep was somewhat better. Notably the Veteran was using his CPAP machine three to four hours per night. There was no increase in depression. January 2010 treatment, showed increased problems with depression, some related to the holidays. He spoke of missing his late wife at Christmas. He had been on a lower dose of medication, so he intended to go back to the prior dose. Sleep was very poor, with frequent awakenings. No hopelessness was present. February 2010 treatment records show continued problems with depression, which the Veteran thought was still due to the holidays. He reported that he accepts what he gets for sleep. His mood was okay. The record noted the Veteran’s hair was nicely cut. In June 2010, the Veteran talked more about the trauma he witnessed while in service, and his worries as whether the service member was found. He discussed positive aspects of relationships with his daughter and her husband and the Veteran’s twin grandchildren. He endorsed occasional hopelessness. PTSD was again noted as being somewhat controlled. August 2010 VA treatment records showed the Veteran’s mood was dysphoric and that he had not ridden his motorcycle since his wife died of cancer in 2005. He denied thoughts of self-harm or harm to others, but “sometimes [he] doesn’t care.” The mental status examination showed dysphoric mood and blunted affect. The Veteran was occasionally hopeless. The examiner noted that the Veteran presents symptoms of military and non-military PTSD. At that time, the clinician reported the results of a Mississippi Combat PTSD Scale questionnaire (“Scale”), in which the Veteran’s score was 140. The examiner did not explain the significance of the Scale. The Scale was noteworthy for the following symptoms: having less close friends now than in the military; very likely to become violent if someone pushes him too far; sometimes becoming very distressed and upset if something happens that reminds him of the military; rarely being able to become emotionally close to others; frequently having nightmares; frequently wishing he were dead when thinking of things he did in the military; responding “slightly true” to the question “lately I have felt like killing myself”; never sleeping through the night; very frequently awakening in a cold sweat after dreaming; rarely enjoying the company of others; never feeling comfortable in a crowd; sometimes losing his cool and exploding over minor everyday things; responding “somewhat true” to “my memory is as good as it ever was”; responding “very true” to “I still enjoy doing many things that I used to enjoy”; very frequently having trouble concentrating on tasks; and responding “not at all true” to “I have found it easy to keep a job since my separation from the military.” An August 2010 interdisciplinary treatment plan reported the problem as depressed mood rated at 5 out of 10, continuing distressing dreams, and sleep disturbance. In November 2010 VA treatment, the Veteran reported feeling worse and considered restarting carbamazepine. He was anticipating cooking for his sister at Thanksgiving, and seeing grandchildren later in the day. His mood was dysphoric. Occasional hopelessness was reported. In December 2010 VA treatment, the Veteran reported being “maybe a little better…not a lot.” Mood was less dysphoric. He was anticipating socializing with his sister at Christmas. He was still interacting with twin grandsons. An April 2011 VA treatment record reported no thoughts of harm to self or others, but he “sometimes doesn’t care.” No hallucinations were present. Mood was frustrated, but okay, with blunted affect. Suicidal and homicidal thought were negative. He was future oriented, but expressed occasional hopelessness. A November 2011 VA treatment record reported distressing thoughts of seeing the soldier being killed. His mood was okay and he was tearful on some sad topics. Affect was blunted. In October 2012, he spoke positively about his relationship with his grandsons, who were teaching the Veteran the computer. He reported still having some nightmares and intrusive thoughts. He was taking medications as directed, and thought they may help some. No thoughts of harm to self or others were present, but he “sometimes doesn’t care.” No hallucinations were present. He was positive about getting an A+ on his driving sensor and accompanying discount from his auto insurer. His mood was reported as “okay.” An April 2013 note reported that he continued with nightmares of feeling he is covered in blood. He reported about his eight-year old twin grandsons. In November 2013, continued nightmares were reported. Mood was okay, with occasional hopelessness. A June 2014 VA treatment record notes continued nightmares and intrusive thoughts. A January 2015 record reports the same, and that the Veteran is still involved with family. A May 2015 jury excuse from Dr. P.S.S. noted the Veteran’s PTSD was “severe.” A November 2015 primary care note shows the Veteran denied a change in sleep and excessive worry. An April 2016 VA examination was conducted. The examiner found that the Veteran does not have a mental disorder that conforms with the DSM-5 criteria. The examiner reported the Veteran living with his brother since his wife died in 2005. The report indicated the Veteran was not taking psychotropic medications nor was he engaged in any individual psychotherapy for any reported psychological concern or distress. The examiner observed that the Veteran arrived to the interview on time. He was dressed casually with fair grooming and hygiene. He had a cooperative, though reserved, demeanor and variable eye contact. His movements and gait were steady. Speech was within normal limits. Affect and mood were euthymic. No suicidal or homicidal ideations were present. Thought processes were intact. Judgment and insight were deemed to be fair. The examiner did not provide a response to the question of symptoms. The Board gives this examination report lesser probative value due to a factual finding that appears to be inconsistent with other VA treatment records. Specifically, the Veteran appears to have been taking psychotropic medications, whereas the report found he was not. An August 2016 psychiatry attending note showed the Veteran reported being “okay,” but needing medications to help his “nerves.” He reported that his daughter and her family moved to South Carolina. He denied thoughts of harm to himself or others. Mood was somewhat dysphoric, and mildly anxious. At a November 2016 pre-operative medical consultation, the Veteran denied anxiety, confusion, memory loss, suicidal and homicidal thoughts, depressed mood, and hallucinations. In February 2017, the Veteran was admitted to a VA hospital for spinal surgery. He was administered several psychological/psychiatric evaluations during the course of his stay. A February 16, 2017 geriatric admission evaluation note reported that the Veteran lives with his brother. He denied suicidal and homicidal ideation. The note found the Veteran has PTSD and sometimes has flashbacks. The examiner found the Veteran to have a good mood and appropriate affect. A psychology note at that time reported only the civilian trauma with respect to ongoing nightmares and guilt related to the incident. A social history showed the Veteran engaged to his fiancée, who has been dating for 1 year but who he had known over 35 years. The Veteran was married twice previously; once widowed, once divorced, according to the report. The Veteran reported that he had regular contact with his daughter in South Carolina, 3 children and several step children. The Veteran reported that his current mood is impacted by pain. He described low mood, feelings of sadness, apathy, and feeling worried/fixated on his pain. He noted that “nothing helps” with the pain. The Veteran denied suicidal ideation, intent, or plan, adamantly stating that he is just bothered by the pain but is otherwise happy most of the time. He reported that he primarily stays busy “running the house.” The mental status examination showed fair to poor eye contact and adequate grooming. The Veteran ambulated brief distances with a walker. There were no aberrant motor disturbances. Speech was slightly slow in rate. Thought content/process was sparse; the Veteran was responsive to direct questions only. Mood was dysthymic and affect was congruent with mood. The Veteran was in visible pain at points during the session. No hallucinations, delusion, paranoia, suicidal ideation or homicidal ideation were present. The Veteran reported poor sleep for more than thirty years that has been impacted by chronic back pain. The Veteran reported that he is generally able to fall asleep but will wake up frequently throughout the night. The clinician discovered the Veteran typically goes to bed around 11:30 p.m. and will get out of bed at 9 a.m. to 10:00 a.m. He endorsed having the television on to sleep and consuming caffeine continuously throughout the day. The clinician noted the Veteran’s sleep apnea and that the Veteran was maybe interested in changing some of his sleep behaviors. A February 17, 2017, Psychiatry note showed nightmares “every once in a while,” and none since admission. Panic symptoms with increased anxiety were endorsed, but none during this admission. He states that he was in too much pain to be anxious. He denied feeling on edge, and described his mood as “alright, good.” The note reported that sleep has always been an issue, and that he had been given a CPAP to wear at night, with which he was non-compliant due to feeling “claustrophobic” with the mask on. Affect and mood were euthymic, “alright, good,” and congruent. The Veteran denied panic symptoms, increased anxiety, low mood, racing thoughts, suicidal and homicidal ideation and hallucinations. He was alert and oriented to all spheres, recent and remote memory was intact, and concentration was good. His thought process was linear, organized, and goal-oriented. Thought content was absent paranoia or delusions. Insight and judgement were fair. He endorsed disturbed sleep patterns. Pain was his primary concern. An addendum to that note reported that the Veteran had a history of PTSD with no current symptoms. A February 22, 2017 note reported poor sleep hygiene by keeping the TV on and caffeine in the evenings. The note reported lack of adherence to his CPAP machine, only using it intermittently. A February 24, 2017, note reported the Veteran sleeping better after receiving education about sleep hygiene. The Veteran underwent a February 2018 VA PTSD examination. The diagnosis was PTSD by history. The examiner found there was occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The social history showed the Veteran living in his parents’ home with his wife and brother. His marital status had not changed. The couple reportedly have a good relationship. Prior to that, the Veteran’s first wife died in 2005. The Veteran maintained contact with the several children from his previous marriage who live out of state. The Veteran reported that he does not really go anywhere or do very much. He previously enjoyed motorcycle rides, but a back surgery and back problems has limited this in the past couple of years. He also reported going to church regularly. The Veteran reported that he joined the DAV recently, and has been to 3 meetings at this point. The Veteran denied other friends; however, he was happy with his current social group, and does not feel that he needs a larger social group. The Veteran reported that he has not worked since at least 1997. He reported that he is no longer on social security disability, and has transitioned to general social security due to his age. He stated that this was one of the reasons he pursued unemployability through the VA. The Veteran denied any involvement in education or academic activities since his previous evaluation. The Veteran reported that he is not able to work due to his lung disease, his avoidance of crowds and other people, and other health factors. He reported his PTSD treatment offered stability. Therefore, he did not see his treating clinician as often as he used to. In regards to current symptoms, the Veteran reported that he has nightmares about two to three times a month, but it had been much worse in the past. After being provided with a description of anxiety, the Veteran reported he worries about everything and described “everyday living” as being the source of worry. He stated that he has increasing health problems, such as diabetes, that concern him. The examiner concluded that this appears more consistent with generalized anxiety, or normative anxiety surrounding a health condition. The Veteran said that he often has a depressed mood, but has become used to living with it. He reported that he had thoughts of suicide years ago, but has not had any in many years. He reported occasional feelings of people being out to get him, but not often. He often feels that others may be talking about him. The Veteran reported that his only avoidance symptoms involved avoiding crowds, which is not immediately relevant to his reported trauma, according to the examiner. He stated he will go to church, but sits in the back and avoids people behind him. The Veteran described intrusive thoughts when reminders occur, such as the sounds of construction vehicles. The Veteran reported occasional angry outbursts with immediate remorse. The Veteran reported very limited sleep, as little as an hour a night, though he was unable to explain why. The examiner noted that this is complicated by the Veteran’s sleep apnea diagnosis. The Veteran stated that his wife has reported he sleeps more than he thinks he does. He may wake up sweaty or out of breath, and when this is related to a nightmare, he may think that he is covered in blood. The Veteran reported that this happens infrequently. The Veteran attributed benefit in many symptoms to his medication adherence, and has been very happy with the benefit he has seen. When asked about his interpretation of the reason for the present evaluation, the Veteran reported that this evaluation is due to his previous evaluation of PTSD, started in 1997. He stated that he was applying for unemployability payment because after he reached retirement age, he was no longer being offered social security disability, and needed further service connection to supplement his income. Symptoms reported were depressed mood, anxiety and suspiciousness. Behavioral observations showed that the Veteran was friendly and cooperative during the entire assessment. The Veteran’s mood was generally euthymic, with appropriate affect. Thought processes were logical and goal directed. There were no abnormalities in speech. The Veteran’s gait was uneven, but generally appropriate. The Veteran completed an MMPI-2 RF to assess psychopathology and personality characteristics. The Veteran produced a valid profile, with no evidence of careless, random, or biased (e.g. overly acquiescent) responding. The Veteran’s validity profile suggested some level of exaggeration. The examiner explained this appears to most impact somatic and cognitive symptoms, which showed much greater evidence of frank over-reporting. The examiner further explained that the Veteran also responded in a way that was consistent with a naive attempt to appear virtuous or deny common faults that most people share. The combination of these elements suggests that the Veteran’s profile is invalid. The examiner, thus, did not further interpret it. The examiner stated that, while the Veteran’s report of current symptoms showed evidence of over-reporting, this was not consistent with his behavioral outcomes. His report of functional ability showed general stability and even improvement. This is also more parsimonious with his recent mental health appointment notes suggesting stability and general lack of current problematic symptoms, the examiner concluded. This congruence suggests that the description of his mental health symptoms from his recent mental health notes is more likely to be the accurate account, the examiner opined. The examiner found the Veteran’s current symptom level to be somewhat unclear. While the Veteran reported occasional difficulty with mental health symptoms, the examiner found these features to largely be absent from his clinical record, including his relatively infrequent psychiatry appointments during long-term stays in the “GEM unit.” The examiner noted that the Veteran also appeared to be fairly successful socially, recently joining the DAV, getting married, and continuing to attend church. Withdrawal from enjoyed activities appeared to be driven mostly by physical health factors, according to the examiner. In total, according to the examiner, while the Veteran continued to carry a historic diagnosis of PTSD, his symptoms appeared to be sub-threshold, and provided only minimal interference with functioning, especially as compared to his other diagnoses. The examiner further found that the impact of these mental health factors on the Veteran’s ability to seek employment was difficult to assess, as he had not attempted to seek employment or a voluntary position for many years and did not intend to do so. However, his general success in social settings appeared to suggest that if anything, his functional ability has improved. Considering the Veteran’s reported reason for seeking this claim is due to an attempt to make up for a loss in social security payments, and not due to an increase in symptoms, it is at the very least unlikely that he has shown further functional decline as a result of his PTSD, the examiner stated. In actuality, according to the examiner, the Veteran’s mental health symptoms appear to cause mild or transient difficulty with day to day living. As for further evidence, treatment notes in 2017 show the Veteran denying anxiety, and depressed mood. On examination, normal mood and affect were present. See e.g. August 2017 VA treatment note. The Veteran submitted an August 2018 Psychology Report from a private psychologist. The psychologist noted review of the medical history in the claims file and a clinical interview of the Veteran the prior day. The report surveyed the Veteran’s medical history including recitations of symptoms from dates well prior to the commencement of the appeal period. The examiner then concluded that the severity of the mental disorder is occupational and social impairment, with deficiencies in most areas. The examiner cited “near continuous depression and anxiety affecting the ability to function independently, appropriately, and effectively,” noting depression and anxiety, suicidal ideation, impaired impulse control, and difficulty adapting to stressful circumstances. The examiner also cited everyday living as being a source of worry, suspicion about others talking about him, avoidance of crowds, very limited sleep, as little as an hour per night, nightmares, intrusive thoughts, and physical violence in the workplace. The Veteran’s wife of about one year submitted an affidavit in June 2018 in support of the Veteran’s claim. She reported knowing him for about forty years, and that shortly after she met him, she was aware of his PTSD symptoms because they were too severe to hide. She stated that one of the most severe symptoms is his inability to sleep at night, with nightmares that keep him up nearly all night every night and talking in his sleep. She further affirmed that he has severe irritability and will fly off the handle at least three times a week. She asserted that when he yells at her over nothing, it puts a strain on the relationship. She further declared that the Veteran is always in a state of panic, is easily startled, is paranoid, experiences severe memory loss, is severely depressed at least four times a week, staying in bed longer than the average person, is unable to maintain stable relationships with his friends and family, mainly because he is angered easily. She declared that the Veteran told him about experiences in which he was sent home from work or fired because of a verbal or physical altercation. The Veteran also submitted an affidavit. He declared that he had odd jobs until 1994. The longest he was employed was for six years, but was fired from almost every other position because he has a difficult time getting along with others. He declared that since 1987, he has not been able to tolerate being around people. He reported having a difficult time going out into public, and not liking being in environments he cannot control. He endorsed flashbacks brought on by construction noises. He reported occasionally experiencing bouts of depression in which he cannot leave his bed. He asserted being unable to sleep during the night due to nightmare. He also asserted a loss of memory, including forgetting dates, time periods, and a tendency to forget names, etc. Upon review of the evidence, the Board finds that a higher evaluation is not warranted. Prior to April 2009, the Veteran’s symptoms were not associated with the military stressor. Once a military stressor was established, the military symptoms were not as marked as the civilian-related symptoms. See April 2009 VA treatment note. From the start of the appeal period, the Veteran’s symptoms were “somewhat stable.” He was able to attend to his personal hygiene, relate to the clinicians appropriately, and speak clearly and coherently. Judgement was always fair and thinking was not impaired. He maintained relationships with his family, including a brother, sister, daughter, son-in-law, step children, and grandchildren. See January 2010, June 2010, November 2010, December 2010, October 2012, and February 2017 VA treatment notes. He even elevated a 35-year friendship into a marriage. He also attended church regularly. Therefore, the Board finds that he is not deficient in family relations, judgment, or thinking. Insufficient evidence is present to establish deficiency in work and school, given the Veteran had not worked or attended school in many years. On the whole, the Board finds the most prevalent and pervasive of symptoms have been depression, anxiety, social withdrawal, and sleep disturbance. However, these symptoms were moderate at best when considering credibility and probative weight. Mood ranged from “okay,” to dysthymic, to euthymic. In the case of depression, the Veteran reported it to be a level 5 out of 10, during the more severe period. See 2009 and 2010 VA treatment notes. Anxiety was deemed to be mild in VA records. The report of “worrying about everything” and “everyday living” causing anxiety, was discounted by the February 2018 VA examiner as related to the Veteran’s physical health and not a PTSD symptom. The Board gives this opinion significant probative weight. The Board gives less credence to the characterization of “severe” PTSD in the May 2015 jury duty excuse from Dr. P.S.S. The excuse is less reliable than treatment records because the treatment records are detailed, methodical observations rather than an oversimplified summary. The Veteran’s wife reported the Veteran would “fly off the handle” in her Affidavit. However, treatment records rarely indicate the presence of irritability. On such one occasion, the frequency of angry outbursts was found to be “occasional.” See February 2018 VA examination report. Moreover, this is contradictory to February 2017 treatment records indicating sub-clinical symptoms and in which the Veteran stated he was happy most of the time. When reconciling these reports into a consistent disability picture, the Veteran’s mood, including depression, anxiety, and irritability, is no worse than reflected in the 50 percent evaluation. The Board more heavily weighs the evidence from the period prior to February 2017, in order to base the decision on the most evidence most favorable to the Veteran. Beginning in February 2017, the Veteran’s condition appears to have improved such that the Veteran had minimal functional impairment. See February 2017 VA treatment records; February 2018 VA examination report. The Board acknowledges that sleep has been an issue for the Veteran. However, the Board assigns a reduced probative value of the reports of severity and frequency of sleep difficulties because of the Veteran’s diagnosis of sleep apnea and his noncompliance with the use of a CPAP machine for it. Additionally, in 2017, reports are clear that the Veteran practiced poor sleep hygiene by drinking caffeinated beverages all day up until bed time and leaving the television on all night. The reports show that once the Veteran improved his sleep hygiene, his sleep improved. This impeaches the reports of sleep deficiencies as a symptom of PTSD. Similarly, the Board does not assign full probative value to the Veteran’s reports of nightmares of in which he wakes up feeling covered with blood. This particular nightmare was reported in relation to the industrial accident stressor. See December 2004 VA treatment record. Other records reflect that poor sleep was due to chronic back pain. See February 2017 VA treatment records. Next, the Board finds that suicidal ideation and intent to self-harm were not present to any meaningful degree during the appeal period. The overwhelming majority of VA treatment records, which the Board finds to be most probative, show the Veteran denied suicidal ideation. Although the August 2010 Scale shows responses suggesting thoughts of wishing he were dead or feeling like killing himself, the Board finds it is an outlying report, when pitted against the numerous denials. Thus, its effects on the Veteran’s social and occupational functioning are negligible. The Veteran’s and Wife’s affidavits are not particularly persuasive as they are submitted solely in support of the claim for compensation. Therefore, they have undue bias and self-interest overshadowing them, especially considering the Veteran’s acknowledgment that he needed to make up for lost income due to the change in Social Security benefits, and that the Affidavits were produced only after the Veteran hired an attorney. Furthermore, the Affidavits report symptoms largely contrary to the treatment records, to which the Board gives great credibility and probative weight. The treatment records were the result of the Veteran’s statements for treatment purposes, which carry much greater reliability. Moreover, the treatment records are specific as to time period, while the Affidavits’ statements are vague as to time period. It is generally unclear whether the symptoms discussed in the Affidavits are present during rather than before the appeal period. In the case of the Affidavit from the Veteran’s wife, she relates work issues over which her personal knowledge is suspect (e.g. “He has told me about experiences …). Additionally, the February 2018 VA examination report and the February 2017 VA treatment records indicate PTSD was sub-clinical or by history only. The Board affords much more probative weight to these medical evaluations, made by skilled professionals performing thorough evaluations, in their assessment of severity, than to the lay assessments of severity by the Veteran and his wife. The private psychiatric evaluation submitted by the Veteran is also highly unpersuasive. The examiner’s assessment that near continuous depression and anxiety affecting ability to function independently, effectively, and appropriately is a gross exaggeration. The Veteran’s depression and anxiety virtually never prevented the Veteran from functioning independently during the appeal period. The Veteran was consistently able to drive, to perform activities of daily living, and to take care of his twin grandsons. He cooked dinner for his sister on a couple of occasions and kept busy “running the house.” Moreover, the examiner’s finding that suicidal ideation is present is based largely on the Affidavits that the Board discounts. The examiner fails to address glaring and significant evidence against the presence of suicidal ideation over many years and through many treatment visits. The examiner takes the statements that “everyday living” is a source of anxiety in the February 2018 VA examination report dramatically out of context. The credibility of the finding of violence in the workplace is undercut because the Veteran has not been in a workplace in over two decades. Finally, all other symptoms, such as feeling like people are talking about him, are not frequent enough or long enough in duration to have more than a minimal incremental impact on the Veteran’s occupational and social functioning. When considering the foregoing and all other reported symptoms in a holistic way, the symptoms do not more nearly approximate a higher evaluation. REASONS FOR REMAND 1. Service connection for left knee degenerative joint disease with arthralgia is remanded. 2. Service connection for right knee total knee replacement is remanded. 3. Service connection for chronic obstructive pulmonary disease is remanded. The Board cannot make a fully-informed decision on the foregoing three issues because the Veteran has asserted the theory that PTSD caused the Veteran to gain weight and that this obesity has caused or aggravated the Veteran’s bilateral knee and COPD disorders. The Veteran submitted a medical article linking obesity and osteoarthritis. No VA examiner has opined on this theory. The Veteran has not submitted medical evidence linking obesity with COPD. Nonetheless, the current VA medical opinion on the issue is inadequate as to its rationale. It relies only upon the lack of contemporaneous records in service for a negative opinion. 4. Service connection for left ear hearing loss is remanded. This issue was previously denied in an August 2017 Board decision. In September 2018, the Court vacated the Board’s decision as to the issue, consistent with the JMR. The JMR held that, even though the VA examiners considered the in-service threshold shifts, no examiner opined whether left ear hearing loss may otherwise be “causally related to service.” 5. Entitlement to a total disability evaluation based upon individual unemployability is remanded. Finally, because a decision on the issues of service connection for COPD and bilateral knee disabilities could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim of entitlement to a TDIU is required. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion as to the following: whether the service-connected PTSD caused the Veteran to become obese or additionally obese, including as due to an effect of the medications taken for the disorder (see e.g. notation of Mirtazapine with weight gain in May 2008 VA treatment record). Please identify the additional weight gain attributed to PTSD in terms of pounds gained. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. If the opinion obtained in the foregoing is in the affirmative, obtain a VA medical opinion as to the following: a. Whether the obesity that was caused only by the service-connected PTSD was a substantial factor in causing the right knee disorder; b. Whether the right knee disorder would not have occurred but for the obesity caused only by the service-connected PTSD. c. Was there an increase in severity of the knee disorder, and if so was it clearly and unmistakably due to the natural progress of the disease? If any reference to the Veteran’s weight is made in the rationale for this opinion, please identify whether the increase in severity would not have happened but for the weight the Veteran gained due to his PTSD. d. Whether the obesity that was caused only by the service-connected PTSD was a substantial factor in causing the left knee disorder; e. Whether the left knee disorder would not have occurred but for the obesity caused only by the service-connected PTSD. f. Was there an increase in severity of the left knee disorder, and if so was it clearly and unmistakably due to the natural progress of the disease? If any reference to the Veteran’s weight is made in the rationale for this opinion, please identify whether the increase in severity would not have happened but for the weight the Veteran gained due to his PTSD. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Obtain a VA medical opinion from a pulmonologist on the following: a. Whether the Veteran’s COPD at least as likely as not began during active service, or is related to an incident of service. A negative opinion based solely on the lack of evidence in the service treatment records is an inadequate rationale. b. Whether it is at least as likely as not that any weight gain caused by the Veteran’s PTSD proximately caused or aggravated beyond its natural progression the Veteran’s COPD. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (Continued on the next page)   4. Obtain a medical opinion from a VA audiologist on the following: whether it is at least as likely as not related to hazardous noise exposure in service. The attention of the examiner is directed to the Court decision in this case that consideration of the threshold shifts in service alone is insufficient. The examiner should additionally opine as to whether left ear hearing loss may otherwise be causally related to service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Rocktashel, Counsel