Citation Nr: 1806900	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-12 902	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Entitlement to a restoration of a 10 percent disability rating for chronic left knee strain, currently rated as 0 percent disabling.

2. Entitlement to a restoration of a 10 percent disability rating for chronic right knee strain, currently rated as 0 percent disabling

3. Entitlement to an initial evaluation in excess of 10 percent for chronic left knee strain.

4. Entitlement to an initial evaluation in excess of 10 percent for chronic right knee strain.

5. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with major depressive disorder. 

6. Entitlement to service connection for low back pain. 

7. Entitlement to service connection for a sleep disability. 

8. Entitlement to service connection for noninfectious bronchitis.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

J.T.Stallings, Associate Counsel


INTRODUCTION

The Veteran had active service from October 2006 to March 2007, July 2007 to January 2008 and May 2008 to October 2008.

These matters originally came before the Board on appeal from a March 2012 and a March 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.


FINDINGS OF FACT

1. Bilateral chronic knee strains did not show material improvement at the time of the reduction. 

2. Bilateral chronic knee strains are not manifested by limitation of flexion to 30 degrees or less, extension limited to 10 degrees or more, recurrent subluxation or lateral instability, or dislocated semilunar cartilage.

3. PTSD with major depressive disorder has not manifested by occupational and social impairment with deficiencies in most areas.

4. Low back pain did not have its onset in service and is not otherwise related to service.

5. The Veteran does not have a current sleep disability, and any symptomology she does have is already compensated by her service-connected PTSD. 

6. Noninfectious bronchitis was not present in service and is not otherwise related to service.


CONCLUSIONS OF LAW

1. The reduction in the individual ratings for bilateral knee strains, from 10 percent to 0 percent, effective January 1, 2015, was improper, and restoration of the 10 percent rating is warranted as of that date. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344 (2017).

2. The criteria for an initial evaluation in excess of 10 percent for bilateral knee strains have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2017).

3. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.130, Diagnostic Code 9411 (2017).

4. The criteria for service connection for low back pain have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

5. The criteria for service connection for a sleep disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

6. The criteria for service connection for noninfectious bronchitis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

Neither the Veteran nor the representative has 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 duty to assist argument).

II. Reduction of Rating- Bilateral Knees

The Veteran contends that the disability ratings for her bilateral knee strains should not have been reduced from 10 percent to 0 percent disabling since January 1, 2015. 

Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155 (2012). Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344 (2017); see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). 

Where a disability rating has been in effect for five years or more, a rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher rating. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a).

However, the provisions of 38 C.F.R. § 3.344(a) do not apply to disabilities for which the assigned ratings have been in effect for less than five years, as in this case, which facts will be laid out in more detail below. Such disabilities are not considered stabilized and, thus, are subject to improvement. Re-examination disclosing improvement in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344(c) (2017). 

In any rating reduction case, however, not only must it be determined that an improvement in a disability had actually occurred at the time of the reduction, but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon review of the entire history of the veteran's disability. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations. Faust v. West, 13 Vet. App. 342 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a veteran is capable of more than marginal employment. Additionally, the examination reports on which the reduction are based must be adequate. See Tucker v. Derwinski, 2 Vet. App. 201 (1992).

In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated; although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer, 2 Vet. App. 281-282. However, post-reduction evidence may not be used to justify an improper reduction. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens, 7 Vet. App. 320.

Although the Veteran has received separate rating for her service-connected knee disabilities, the Board will discuss the claims together as the analysis is the same for each knee. 

Although the Veteran's bilateral rating had not been in effect for more than five years to receive the above stated protections under 38 C.F.R. § 3.344(a), the slight improvements in the Veteran's abilities do not warrant a reduction in her ratings. 

The Veteran's slight changes at her October 2014 VA examination were not enough to warrant the Veteran's disabilities being reduced to noncompensable. While the examination shows no painful motion at the time of the examination, she reports having to stand all day at her employment, which caused her chronic daily pain that did not stop even when resting. The Board does not find this information an indication of improvement, but a changing of description of the symptoms. The Board also finds her subjective statements in this situation over time more probative than the specific one point in time examination. The new examination may have reflected an improvement, but not an improvement in the Veteran's daily functionality. 

Therefore, the Board finds that the Veteran's bilateral chronic knee strain disabilities were improperly reduced. The preponderance of the evidence weighs in favor of granting the Veteran's claim to restore the initial 10 percent ratings for both the right and left chronic knee strain disabilities. Based on the above, the Board finds the evidence to be in relative equipoise. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).Ultimately, as the evidence is in relative equipoise, reasonable doubt shall be resolved in favor the Veteran, and her claim granted.

III. Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). 

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). 

In Hart v. Mansfield, 21 Vet. App. 505, (2007), the United States Court of Appeals for Veterans Claims (Court) recognized entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."

The Board has reviewed all the evidence in the Veteran's electronic file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

IIIa. Increased Rating- Bilateral Knee

The Veteran also contends that her left and right chronic knee strain disability ratings should be in excess of her 10 percent rating. Again, the Board will address both knees simultaneously as the analysis is the same for both disabilities. 

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995).

Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.

The intent of the Rating Schedule is to recognize actually painful, unstable or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5010, arthritis due to trauma and substantiated by x-ray findings is rated as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003, on the basis of limitation of motion of the specific joint involved. 

Normal range of motion for the knee is 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, flexion of the leg is rated 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, extension of the leg is rated noncompensable when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, recurrent subluxation or lateral instability is rated at 10 percent for slight instability, 20 percent for moderate instability, and 30 percent for severe instability. The VA General Counsel has interpreted that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 (arthritis with painful limitation of motion) and 5257 (instability). See VAOPGCPREC 23-97. Likewise, the VA General Counsel has also interpreted that, when x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocation of semilunar cartilage with frequent episodes of "locking" pain and effusion into the joint is rated at 20 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, symptomatic removal of semilunar cartilage is rated at 10 percent.

Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against an initial rating in excess of 10 percent for bilateral knee strain. The reasons for this determination are explained below.

The Veteran's bilateral knee disabilities are currently rated as 10 percent under Diagnostic Code 5260, which is based on limitation of flexion. To warrant a 20 percent for limitation of flexion, flexion must be limited to 30 degrees or less. During the appeal period, the Veteran has not had any compensable limitation of flexion throughout the appeal period particularly at either of her VA exams in October 2011 or July 2014. The current 10 percent rating for both of her knee strains is based on painful motion of the knee under 38 C.F.R. § 4.45 and 38 C.F.R. § 4.59. These ratings criteria are specific for claims like the Veteran's, when the disability does not rise to the level of a compensable rating, but cause pain and other symptoms when in use. The Veteran complained at both examinations that she has pain in her knees upon standing, carrying loads, going up stairs or sitting too long. 

In this regard, the Board acknowledges the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), in which the Court held that VA examinations must comply with 38 C.F.R. § 4.40 regarding functional loss; the examiner must be asked to express an opinion on whether pain could significantly limit functional ability during flare ups or when the joint is used repeatedly over a period of time. Here, both her examinations, the examiner noted that neither the Veteran's ranges of motion or pain contributed to a functional loss. However, giving benefit to the Veteran's reports of pain, weakness and incoordination over time the Board finds that the Veteran's symptoms rise to be the necessary criteria for a 10 percent rating minimal joint rating. However with all evidence considered, the Board finds that the Veteran's symptoms are completely contemplated by the rating criteria, as the reason the Veteran's disability has warranted a 10 percent rating in the first instance was due to painful motion, as she does not meet the compensable criteria for limitation of motion. As such, with the current rating encompassing the functional loss the Veteran is experiencing, the Veteran does not meet the necessary criteria for the higher rating under Diagnostic Code 5260.

As stated above, ratings are also available for a knee disability under Diagnostic Code 5261 (limitation of extension), Diagnostic Code (recurrent subluxation or lateral instability), and Diagnostic Code 5259 (removal of semilunar cartilage). See 38 C.F.R. § 4.71a. However, the evidence does not establish that the Veteran has these impairments. For example, both the 2011 and 2014 VA examiners made specific findings that the Veteran had no compensable loss of extension for both knees. Therefore, a separate rating for limitation of extension is not warranted. Additionally, both examiners examined for recurrent subluxation and lateral instability and found the knees had neither symptom. Finally, there is no evidence of a meniscus removal for either knee. Therefore, these Diagnostic Codes would not provide for a higher rating. 

The Board accepts that the Veteran has experienced functional impairment, pain, and pain on motion. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible and has considered the functional impact of the Veteran's pain. Nevertheless, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for higher evaluations under diagnostic codes pertinent to the knee when considering such factors as pain, weakness, fatigue, lack of endurance and incoordination. 

In summary, higher ratings for the Veteran's bilateral knee strain are not warranted with consideration of all potentially applicable diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The disability picture does not more nearly approximate the criteria for the next higher rating under any applicable Diagnostic Code, as discussed above; therefore, the lower rating must be assigned. See 38 C.F.R. § 4.7. 

IIIb. Increased rating-PTSD

The Veteran's service-connected PTSD is currently evaluated as 50 percent disabling, under Diagnostic Code 9411 of the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411 (2017).

A 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked inability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411.

A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411.

The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vasquez-Claudio v. Shinseki, 713 F3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms [,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"-i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vasquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411.

Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission." 38 C.F.R. § 4.126 (a). The Board must also "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 examination." Id. 

The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Health Disorders (4th ed. 1994) (DSM-IV). A GAF score of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. DSM-IV; 38 C.F.R. §§ 4.125, 4.130. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood, (e.g., depressed man avoids friends, neglects family, and is unable to work). See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).

Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. Carpenter, 8 Vet. App. at 242. An assigned GAF score, like an examiner's assessment of the severity of a disability, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995).

Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against an increased rating for the Veteran's service-connected PTSD. The reasons for this determination are explained below.

The Veteran claims that her PTSD has gotten worse and now supersedes her current 50 percent rating. According to the report from her December 2014 VA examination, the Veteran has made a suicide attempt since her last rating. As of the date of the exam, the Veteran was not active in mental health treatment and had gotten a driving under the influence criminal charge. The Veteran also stated that she had to drop out of school because of her anxiety levels and was having trouble maintaining a job because of being quick to anger. 

After a full examination, the examiner reported that the Veteran's overall social and educational functioning showed some reduction since the last examination. However, the examiner also pointed out some inconsistencies. The examiner indicated that the Veteran had stated she was unable to maintain work, but the record shows the Veteran had been solidly employed since her last evaluation. In fact, the Board notes one week later following this exam, at another VA exam for her knee disabilities, the Veteran noted all the standing she does at work as a basis for the worsening of her disability. She also stated that she had to leave school because of her anxiety, but the examiner noted a medical report where the Veteran reported tuition issues being the reason that she had to leave school. 

Based on these factors, the Board finds the Veteran's subjective statements less credible and less probative to the deciding of this case. Credibility can be generally evaluated by considering interest, bias, or inconsistent statements, the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). As such, the Board finds the statements made to the medical professionals outside of the context of a benefit claim more credible than the statements made for the purposes of obtaining an increased rating. See Fed. R. Evid. 803(4) (accepting statements made for medical diagnosis or treatment from being excluded as hearsay due to their generally recognized credibility); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("recourse to the [Federal Rules of Evidence] is appropriate where they will assist in the articulation of the Board's reasons."). Therefore, The Board finds that the objective evidence carries more weight based on the inconsistencies of the Veteran's statements.

The Board has also considered the Veteran's GAF scores assigned during the course of the appeal. In this regard, a GAF score of 60 was assigned at the Veteran's September 2011 VA examination and a GAF of 57 was assigned in a November 2013 examination report. A GAF score, while not dispositive, is nevertheless highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). These scores, although demonstrating a slight worsening over time, both still suggest moderate to severe impairments and are consistent with the current 50 percent rating. Moreover, as the Veteran's PTSD symptoms which detailed above are contemplated by her current 50 percent rating, a higher rating is not warranted based solely on the GAF scores assigned.

The Board further notes that the evidence of record reflects that the Veteran has additional symptomatology that is not enumerated in the rating criteria, to include nightmares, difficulty concentrating and a lack of motivation. See Mauerhan, supra. However, the Board finds that such symptoms do not more nearly approximate a rating in excess of 50 percent under the General Rating Formula as they are not of such a severity, duration, or frequency to result in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. These symptoms are not consistent with the level of severity of symptoms found in the 70 percent rating which speak to suicidal ideation; obsessional rituals with interfere with routine activities; speech that was intermittently illogical, obscure or irrelevant; 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), etc.

Finally, the Board notes that the Veteran and her mother have provided statements in regard to the symptomology that the Veteran is experiencing. However here, neither the lay nor medical evidence reflects the functional equivalent of the necessary schedular criteria to warrant the next higher evaluation. Therefore, the lay and medical evidence demonstrates that the currently assigned evaluation of 50 percent is appropriate for the Veteran's PTSD disability.

The Board finds that although the Veteran's symptoms may have worsened since her last rating they have not increased to a level necessary to more closely assimilate to the criteria necessary for a 70 percent rating. The preponderance of the evidence weighs against the Veteran being granted an increased rating for her PTSD. 

As the Veteran's current disability picture does not meet the necessary criteria for an increased rating to 70 percent there is no need to contemplate the higher rating of 100 percent as it requires more stringent schedular criteria.

In conclusion, the Board finds that the evidence, does not establish that the Veteran's PTSD symptoms rose to the level of occupational and social impairment with deficiencies in most areas and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

III. Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

IIa. Service Connection-Low Back Pain

The Veteran contents that her current back pain disability is directly related to her military service. 

While in service upon returning from her development in August 2008 she noted on her health assessment that while deployed she did seek medical attention for back pain and had been given a profile. The Veteran had a diagnosis of lumbago noted in her service treatment records however according to Dorland's Medical Dictionary for Health Consumers, lumbago is just another description for pain in the lumbar region. The Board notes that "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) aff'd 259 F.3d 1356 (Fed. Cir. 2001) (affirming on other grounds without addressing pain alone).

On the same assessment it was also noted that the Veteran was not having any difficulties in the last month due to any pain or injuries and that her health was about the same as it was prior to the deployment. The Veteran did not seek medical treatment again for her back until after service around January 2011. However, even though her various treatments over the next several months she was not given a diagnosis, but treated for pain. 

During her October 2011 VA examination, the Veteran was diagnosed with mild scoliosis of the thoracolumbar spine. However, the examiner also found that the Veteran's examination showed no impairment of functionality and that the condition is almost always developmental, not traumatic, in young women like the Veteran and the Veteran's disability existed prior to service. Thus, the Board finds the weight of evidence tilts in favor of the Veteran not having a back disability related to service. 

Therefore, although the Veteran had back pain while in service, based on the evidence of record, the Board finds that there is no nexus between the Veteran's service and her current back disability. 

As such the preponderance of the evidence is against granting the claim for service connection for a low back pain disability, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

IIb. Service Connection-Sleep Disability 

 "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . .  In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Begmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997).

The Veteran does not have a current medically diagnosed sleep disability. The Veteran's service treatment records are silent for any diagnosis or treatment of symptoms for any sleep disability as well. The Veteran references sleep disturbances when discussing her PTSD and nightmares she is having due to service. However, the Board finds that this to be symptomology already contemplated by her PTSD disability. Granting a separate rating for these symptoms would be pyramiding and must be avoided. 38 C.F.R. § 4.14 (2017).  Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition.  Id. 

Therefore, with no separate current disability, the preponderance of the evidence weighs against the Veteran being granted service connection for a sleep problem disability, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

IIIc. Service Connection-Noninfectious Bronchitis

It is unclear whether the Veteran has a bronchitis disability within the appeal period or just symptomology, but giving the benefit of the doubt to the Veteran the Board will address the claim on the merits that she does have a current disability. The Veteran claims that her recurrent noninfectious bronchitis is due to being exposed to toxins while working in the military as an engineering fuels specialist. The Board finds that there is a lack of evidence of a nexus between the claimed noninfectious bronchitis and her military service. 

For example, the Veteran's service treatment records are silent to any type of diagnosis, symptoms or treatment of a respiratory illness while in service. In fact, the Veteran was given a respiratory medical questionnaire in January 2008 in which she marked no to chronic bronchitis. In another instance, the Veteran was given a post-deployment medical evaluation while in service, when returning from a deployment in Iraq in August 2008 and marked that she was not having any long lasting cough or chest pain or pressure.

The Veteran was offered a VA examination for her respiratory condition in October 2011. The examiner determined after a full physical examination and review of the Veteran's record that the Veteran's episodes of noninfectious bronchitis symptoms are not related to service. The examiner goes on to state that the Veteran testing for exposure to occupational toxins revealed only low to moderate exposure levels and that she had never been treated up to until a year before the examination. The examiner states that more than like her disability was due to her long term tobacco use and upper airways allergen disease that she has had since childhood. 

Even the Veteran herself stated that the dry cough had not started until a year prior to the examination which would have been over a year after her last period of service. More so with all evidence considered, the most probative evidence establishes that the Veteran's bronchitis is not related to her military service.

Therefore, the Board finds that the preponderance of the evidence weighs against the Veteran's noninfectious bronchitis disability being related to service. 

As such the preponderance of the evidence is against granting the claim for service connection for a noninfectious bronchitis disability, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to a restoration of a 10 percent disability rating for chronic left knee strain, effective January 1, 2015, is granted.

Entitlement to a restoration of a 10 percent disability rating for chronic right knee strain, effective January 1, 2015, is granted. 

Entitlement to an initial evaluation in excess of 10 percent for chronic left knee strain is denied.

Entitlement to an initial evaluation in excess of 10 percent for chronic right knee strain is denied.

Entitlement to an initial rating in excess of 50 percent for PTSD with major depressive disorder is denied. 

Entitlement to service connection for low back pain is denied. 

Entitlement to service connection for a sleep disability is denied. 

Entitlement to service connection for noninfectious bronchitis is denied.




_________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs