Citation Nr: 18161221 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 15-03 690 DATE: December 31, 2018 ORDER An effective date of March 24, 2015, for the award of service connection for left knee tendonitis, is granted. An effective date of March 24, 2015, for the award of service connection for right knee tendonitis, is granted. Entitlement to service connection for a dental disability for compensation purposes is denied. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to a rating in excess of 10 percent for left knee tendonitis is remanded. Entitlement to a rating in excess of 10 percent for right knee tendonitis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran initially submitted a claim for service connection for bilateral knee tendonitis in July 1984. 2. In an unappealed October 1984 rating decision, the RO denied service connection for bilateral knee tendonitis. 3. In September 1994, the Veteran submitted a new claim for service connection for a bilateral knee condition. 4. In an unappealed December 1994 rating decision, the RO denied service connection for a bilateral knee condition. 5. In March 2004, the Veteran submitted a new claim for service connection for a bilateral knee condition. 6. In an unappealed August 2004 rating decision, the RO denied service connection for a bilateral knee condition. 7. On March 24, 2015, the Veteran submitted a statement in support of a new claim for service connection for a bilateral knee condition. 8. The Veteran does not have a current dental disability for which service connection may be granted for compensation purposes. 9. Throughout the period under review, the Veteran’s PTSD has manifested in occupation and social impairment with deficiencies in most areas; total occupational and social impairment is not demonstrated by the record. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 24, 2015, for the award of service connection for left knee tendonitis, have been met. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. §§ 3.155, 3.156, 3.400 (2017). 2. The criteria for an effective date of March 24, 2015, for the award of service connection for right knee tendonitis, have been met. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. §§ 3.155, 3.156, 3.400 (2017). 3. The criteria for service connection for a dental disability for compensation purposes have not been met. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2017). 4. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to July 1983. The Regional Office (RO) has noted the Veteran’s dental claim as one for compensation. However, in October 2018 correspondence submitted by the Veteran’s representative, the Veteran indicated that she is specifically filing a claim for dental treatment. As such, the claim for eligibility for outpatient dental treatment is referred to the RO. Once there is a determination made, if the Veteran does not agree with the decision, the Veteran can appeal to the Board. Additionally, in her December 2015 notice of disagreement, the Veteran contends that she should have been awarded an effective date for her bilateral knee condition earlier than May 14, 2015; as she first submitted her claim for her knees prior to that date. While the Board acknowledges the Veteran’s assertions, for the reasons discussed below, the claims must be denied. The rating decisions that denied the initial bilateral knee claim became final when the Veteran did not initiate an appeal by filing a notice of disagreement within one year of the notice of that decision. As such, absent a finding of clear and unmistakable evidence in the October 1984, December 1994, or August 2004 rating decisions that denied the claim, the finality of those decisions cannot be challenged. If the Veteran wishes to file a claim that there was clear and unmistakable error in either the October 1984, December 1994, or August 2004 rating decision, she is notified that she may do that at any time. Lastly, the Veteran submitted an appeal for the issue of entitlement to an effective date earlier than August 17, 2005, for the grant of service connection for posttraumatic stress disorder (PTSD). As she specifically requested an effective date of March 18, 2004 and, in a November 2014 rating decision, the RO granted an effective date of March 18, 2004, this claim is no longer before the Board as this was a full grant of the benefit sought. Effective Date Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. 5110; 38 C.F.R. 3.400. An application for VA compensation must generally be a specific claim in the form prescribed by the VA Secretary (i.e., VA Form 21-526). 38 U.S.C. 5101(a); 38 C.F.R. 3.151 (a). However, any communication or action received from the claimant or certain specified individuals on the claimant’s behalf, which indicates an intent to apply for one or more VA benefits, may be considered an informal claim. 38 C.F.R. 3.155 (a). Such informal claim must identify the benefit sought. Id. Entitlement to an effective date earlier than May 14, 2015 for bilateral knee tendonitis As noted above, the Veteran contends that the effective date for the award of service connection for her bilateral knee condition should be earlier than May 14, 2015. Specifically, she contends that the effective date should go back to the date of her original claim. However, as the Veteran has filed several claims for her bilateral knee condition, she has not specifically indicated which date she believes she is entitled to. Here, the Veteran filed her original claim for entitlement to service connection for a bilateral knee condition in July 1984. In an unappealed October 1984 rating decision, the RO denied service connection for bilateral knee tendonitis. In September 1994, the Veteran submitted a new claim for service connection for a bilateral knee condition. In an unappealed December 1994 rating decision, the RO denied service connection for a bilateral knee condition. In March 2004, the Veteran submitted a new claim for service connection for a bilateral knee condition. In an unappealed August 2004 rating decision, the RO denied service connection for a bilateral knee condition. On March 24, 2015, the Veteran submitted a statement in support of a new claim for service connection for a bilateral knee condition. In May 2015, she submitted a formal claim form (VA 21-526EZ) for a bilateral knee condition and several other issues. An October 2015 rating decision granted service connection for left and right knee tendonitis, with an evaluation of 10 percent, effective May 14, 2015, the date of receipt of the Veteran’s formal claim form. Generally, the effective date of a grant of service connection is based on either the date the original claim was received; the date the petition to reopen the claim was received after a final disallowance; or the date the entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Additionally, as 38 C.F.R. 3.155 (a) notes that any communication or action received from the claimant or certain specified individuals on the claimant’s behalf, which indicates an intent to apply for one or more VA benefits, may be considered an informal claim, the Veteran’s March 24, 2015 statement in support of reopening her claim for service connection for a bilateral knee condition will be considered an informal claim. This was the only evidence of record indicating an intent to file a claim for her bilateral knee condition since the final August 2004 rating decision. Thus, March 24, 2015, the date the informal claim was received, is the earliest possible effective date for the award of service connection for left and right knee tendonitis. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 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). In the context of dental claims, the Court has specifically held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381. Mays v. Brown, 5 Vet. App. 302 (1993). Thus, adjudication of the Veteran’s claim for service connection for compensation purposes must also include consideration of service connection for the purpose of establishing eligibility for outpatient dental treatment as set forth in 38 C.F.R. § 17.161. Disability compensation may be provided for certain specified types of service connected dental disorders. 38 C.F.R. § 4.150. For other types of dental disorders, a veteran may be entitled to service connection for the purpose of outpatient dental treatment only. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. Service connection for compensation purposes can be established only for the specific types of dental and oral conditions listed under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, and loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. For other types of dental disorders not listed under 38 C.F.R. § 4.150, a veteran may be entitled to service connection for the purpose of outpatient dental treatment only. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. Various categories of eligibility exist for VA outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. § 17.161. Regulations governing dental claims make a fundamental distinction between “replaceable missing teeth,” see 38 C.F.R. § 3.381 (b), and teeth lost as a result of loss of substance of body of maxilla (upper jaw bone) or mandible (lower jaw bone) due to trauma or disease such as osteomyelitis, and not the loss of alveolar process as a result of periodontal disease. See 38 C.F.R. § 4.150; see also Simmington v. West, 11 Vet. App. 41, 44 (1998). Replaceable missing teeth may be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. See 38 C.F.R. § 3.381 (b). Entitlement to service connection for a dental disability for compensation purposes The Veteran contends that she has a current dental disability from an upper bridge and teeth pulling that she had completed while in the military. Specifically, the Veteran’s service treatment records (STRs) note that in December 1981, the Veteran had a cap that fell out and a crown completed, and from August 1982 to June 1983, she had various dental treatments done. The Veteran has never been and currently is not diagnosed with any oral or dental condition. She has reported pain, has had teeth removed, a bridge removed, a root canal and a crown repaired. Regarding entitlement to service connection for compensation, the Board finds that the criteria for service connection for teeth or dental problems have not been met. See 38 C.F.R. §§ 3.303, 3.381, 4.150. Under current VA regulations, disability compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, loss of a portion of the maxilla, and loss of teeth if such is due to loss of substance of body of maxilla or mandible. 38 C.F.R. § 4.150. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities and will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. Therefore, there is no evidence of record that demonstrates the Veteran has a dental disorder which would entitle her to service connection for compensation purposes. While the record establishes the loss of teeth and removal of a bridge, the Board places significant weight on the medical reports which document that the Veteran does not have any loss of substance of body of the mandible or maxilla. Therefore, service connection for a dental disorder for compensation purposes must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Increased Ratings Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) Disability ratings are determined by evaluating the extent to which the Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula For Mental Disorders, 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is provided 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Indeed, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. 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. See 38 C.F.R. § 4.126(a). The Veteran filed his service-connection claim for PTSD in March 2004. She later filed a claim for an increased rating in July 2014. A 70 percent rating has been in effect since March 18, 2004. For the reasons discussed below, the Board finds that a rating in excess of 70 percent is not warranted. In a November 2013 VA psychiatry attending note, the examiner indicated that the Veteran was struggling with some dysphoria, but was stable. She reported needing antidepressants, but that she continued to have nausea with fluoxetine. The examiner indicated that the Veteran was appropriately groomed, had good eye contact, had linear, logical, goal-oriented thought process, no suicidal or homicidal ideation, no delusions or hallucinations were noted, and she had good judgment and insight. In a general psychiatric follow-up appointment, the examiner noted the Veteran’s actives issues of hypervigilance, avoidance of men, racing thoughts, few social contacts and support, recent interpersonal difficulty with closest friend, history of running away/moving when psychosocial situations become stressful, and a stressful relationship with her daughter. The Veteran reported living with her son, whom she indicated was her source of support. In an April 2018 PTSD VA examination, the Veteran’s was diagnosed with PTSD, and the examiner indicated that her symptoms caused occupational and social impairment with reduced reliability and productivity. The examiner noted the Veteran had been divorced three times, most recently in 2008; and that she was in a relationship one year prior, which ended after the man she was dating tried to coerce her to engage in sexual intercourse. The Veteran reported having two adult children, and residing with her sister in Virginia to be closer to family. She also reported being unemployed, as she stopped working as a bus operator in 2014 due to experiencing stress. The examiner also noted sleep impairment, nightmares 2-3 times per week, and difficulty in maintaining social relationships outside of her family. The Veteran experienced symptomatology of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner indicated that the Veteran experienced intrusive memories related to military sexual trauma (MST) daily. Those memories are triggered by seeing and being around men she does not know, hearing certain music, smelling certain smells and seeing men with thick eyeglasses. She also avoids leaving her home at night; she endorsed hypervigilance and exaggerated startle response, as she checked the door locks often; and she has difficulty trusting others. The Veteran submitted statements in support of her claim from himself, as well as from her sister, ex-husband and fellow servicewomen, describing symptoms of not wanting to live and attempting suicide, forgetfulness, anger, depressed mood, insomnia, emotional disturbance and nightmares. The Veteran has a son, with whom she has a good relationship with, and a sister that she lives with. She has maintained relationships with them and other family members, some easier than others. As such, the Board cannot find that she demonstrates total social impairment due to her PTSD. Taking all factors into consideration with application of the approximating principles of 38 C.F.R. § 4.7, and the benefit-of-the-doubt doctrine, the Veteran’s PTSD most nearly approximates occupational and social impairment with deficiencies in most areas such as work, judgment, thinking or mood. Indeed, her PTSD was manifested at times by suicidal thoughts, aggression, and difficulty in maintaining relationships; she exhibits depression, sleep disturbance and decreased motivation; and has anxiety and mild memory loss. However, the Board finds that a 100 percent schedular rating is not warranted. A total occupational and social impairment is not demonstrated by the record. While the Veteran and her representative argue a total rating should be awarded based on her difficulties at work, these symptoms do not describe symptoms consistent with total impairment. The Veteran is shown to have had difficulty with her marriages and former husbands. However, she described relationships with her adult children that were not impaired and moving recently to be closer to her family. Given these functional relationships in her life, total social impairment is not shown. Moreover, at no time since the appeal period has any examiner indicated that total occupational and social impairment exists. The Veteran indicated that she was working until 2014. She is able to carry on conversation with her treating physicians, and has been assessed as being oriented to place, time and person. Her treating physicians have not deemed him to be a threat to herself or others, she is able to understand commands, she could manage her benefit payments, she could provide self-care and, although she is having issues with maintaining friends, she has good relationships with her son and sister. Upon review of the evidence as a whole, while the Board finds the Veteran’s symptoms to be severe (warranting her 70 percent rating for the entirety of the appeal period), the Board finds that her PTSD does not manifest in total occupational and social impairment, warranting the assignment of a 100 percent schedular rating at any time during the period under review, and her claim must be denied. 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot disorder is remanded. VA’s duty to assist includes scheduling a VA examination when necessary. The Veteran contends that her left and right foot disorders are related to service, or in the alternative, is secondary to her service-connected bilateral knee condition. The evidence of record includes a November 2018 statement from the Veteran that her feet have been hurting her since she was diagnosed with knee tendonitis. She also noted that the constant wearing of combat boots are the reason she had to have surgery to on feet. An August 2010 VA psychology note indicated that the Veteran reported injuring both feet after she fell off a washing machine. However, there is no indication in the record noting how the Veteran injured her foot or what type of injury she incurred. A November 2013 VA medical center record indicated that the Veteran fractured her right foot after twisting it when attempting to step on a curve. A December 2013 right foot x-ray demonstrated fracture obliquely oriented through the fifth metatarsal diaphysis; small healing callus formation; anatomical alignment that was unchanged; fracture lucency was still visible; and no new fracture deformity was seen, nor foreign body identified. She stayed away from work as a bus driver and indicated to the examiner her concern for re-injuring her foot at work. Additionally, VA medical center records from March 2015 indicated that the Veteran had ingrown toenails that needed treatment, and that she had bilateral plantar foot pain in the mornings. The Veteran has not been afforded a recent VA examination to determine whether she has a current bilateral foot disability that is related to her in-service wear and tear, or potentially secondary to her service-connected bilateral knee disability. As such, the claim must be remanded for the scheduling of a VA examination to obtain an opinion. 2. Entitlement to a rating in excess of 10 percent for bilateral knee tendonitis is remanded. The Veteran is currently service connected for left and right knee tendonitis, rated as 10 percent, under Diagnostic Code (DC) 5024-5260 for limitation of motion of tenosynovitis. She contends that the current severity of her disability warrants an increased evaluation. Having reviewed the record evidence, the Board finds that additional development is necessary before the underlying claims can be adjudicated on the merits. The Veteran last underwent VA examination in October 2015. She provided statements in support of his claim that her knee condition has worsened over time, now assisting in her unemployability. She indicated that her bilateral knee symptomatology now includes additional loss of motion during flare-ups and after repeated use over time, more pain during wet and cold weather, swelling and an antalgic gait. Given these allegations of worsening symptoms, the Board believes an updated VA examination is necessary before the question as to whether a higher rating is warranted can be decided. 3. Entitlement to a total disability based on unemployability (TDIU) is remanded. As the resolution of the claims listed above could impact the claim for TDIU, the adjudication of this claim must be deferred pending the development requested. Harris v. Derwinski, 1 Vet. App. 80 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA bilateral foot examination. The claims file should be made available to, and reviewed by the examiner. Provide answers to the following: Does the Veteran have a current bilateral foot condition? If so, is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral foot condition began in service, or is otherwise the result of a disease or injury in service, to include constant wear and tear while wearing combat boots? Is it at least as likely as not (50 percent or greater probability) that any bilateral foot disorder was caused or aggravated beyond its natural progression by her service-connected bilateral knee condition, to include bilateral tendonitis? The opinion must address both causation and aggravation, as these are two separate inquiries. 2. Schedule the Veteran for a new VA examination with an appropriate examiner to assess the current severity of his bilateral knee tendonitis. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Warren, Associate Counsel