Citation Nr: 20002002 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 16-40 859 DATE: January 9, 2020 ORDER Whether new and material evidence has been received to reopen service connection for back disability is granted. Entitlement to service connection for left knee arthritis is denied. Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a back disability, to include spina bifida and spondylosis, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The March 2000 rating decision, which denied service connection for back condition became final, as the Veteran did not perfect an appeal of the decision or submit new and material evidence within a year of the rating decision. 2. Since the March 2000 rating decision, the Veteran has submitted additional evidence that is new and material to raise a reasonable possibility of substantiating the Veteran’s claim for service connection for a back disability. 3. The probative evidence of record does not show the Veteran’s left knee disability is related to his active duty service. 4. The Veteran’s PTSD has not manifested to occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking or mood due to such symptoms as suicidal ideation; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; impaired impulse control such as unprovoked irritability with periods of violence; and inability to establish and maintain effective relationships; nor did it manifest to total occupational and social impairment. CONCLUSIONS OF LAW 1. The March 2000 rating decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen service connection for back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 101, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.307, 3.309. 4. The criteria for an increased rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1969 to October 1971. New and Material Evidence Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105 (2012). However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2018). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Whether New and Material Evidence has been Received: Back Disability The Veteran is seeking to reopen service connection for a back disability. The claim was previously denied in a March 2000 rating decision due to there being no new and material evidence, specifically, any evidence relating the Veteran’s condition to his active duty service or showing it was aggravated by his service. The rating decision became final, as the Veteran did not appeal the decision or submit new and material evidence within one year of the rating decision. Since the prior final decision, the Veteran has submitted additional medical records, to include a private medical opinion, and additional statements. The Board finds this evidence is new, as it has not been part of the record before, and material, as the private medical records provide evidence of a possible etiology of the Veteran’s condition. Therefore, the evidence is to be considered new and material, and the claim is reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Service Connection: Left Knee Disability The Veteran contends that his left knee disability is related to his active duty service. As an initial matter, the Board acknowledges that the Veteran has been diagnosed with left knee osteoarthritis. He reported that his knee was hit with shrapnel when he served in Vietnam, but the shrapnel did not penetrate his knee. Service treatment records are negative for any complaints or treatment of a left knee injury. In February 2015, the Veteran received a VA examination. The examiner opined that the Veteran’s left knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that the Veteran’s service treatment records do not show complaints for left knee pain or injury. The examiner further provided that the Veteran provided that his left knee pain started about 10-12 years ago, which was 30 years after his discharge from his active duty service. The examiner further noted that x-rays from 1998 showed a normal knee with only mild degenerative changes. The Board acknowledges that a May 2015 private opinion related the Veteran’s left knee disability to his active duty service. However, the physician did not provide a rationale as to why the Veteran’s left knee disability is related to his active duty service. Thus, the Board places low probative value on the private opinion. The Board notes that VA treatment records do show treatment and visits for the Veteran’s left knee disability. However, none of the records relate the Veteran’s condition to his active duty service. Further, the Veteran’s records do not show left knee complaints until 1998, over 27 years after his active duty service. Therefore, the Board finds the February 2015 VA opinion to be of significant probative value in determining that the Veteran’s skin condition is not related to his active service. The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, the reviewing physician’s opinion was based on review of the Veteran’s lay contentions, his reported medical history, and review of the medical evidence of record. Further, a complete and thorough rationale was provided for the opinion rendered and is consistent with the medical evidence of record. The Board acknowledges the Veteran’s assertions that his left knee condition is related to his active duty service. The Board also recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any knee disability is related to his service requires medical expertise that the Veteran has not demonstrated since knee disabilities can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). The Board has also considered whether presumptive service connection is warranted for the Veteran’s left knee arthritis. However, the evidence does not show that the Veteran was diagnosed with arthritis within one year after discharge from service, so presumptive service connection is not warranted. Further, the Veteran reported at his February 2015 VA examination that his left knee pain had started 10-12 years ago, which was 30 years after discharge from service, so service connection based on a theory of continuity of symptomatology is also not warranted. 38 C.F.R. §§ 3.307, 3.309. In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R.§ 4.7. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, 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. 38 C.F.R. § 4.126 (a) (2019). When evaluating the level of disability from a mental disorder, VA also will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an Increased Rating: PTSD The Veteran’s service-connected PTSD is rated under Diagnostic Code (DC) 9411 of the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411 (2019). Under DC 9411, 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 disability rating is warranted for 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 irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. Finally, a 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Veteran submitted a private medical examination from November 2014. The Veteran reported being hypervigilant, avoiding crowds, and positioning himself along the wall in public places. The Veteran stated he cannot tolerate people behind him, does not socialize, gets into arguments easily, and is not trusting of others. The Veteran reported problems sleeping and staying asleep, as well as nightmares and night sweats. He reported getting up to check the doors often and taking his dog out to check the perimeter. The Veteran also reported hyperirritability, problems with memory and concentration, and exaggerated startle response. He also reported having a hard time focusing long enough to finish tasks. The physician noted the Veteran was cooperative and dressed normal. The Veteran’s mood was agitated, affect restricted, narrative was not always linear, and he was oriented to person, place, and time. The Veteran did not endorse any suicidal or homicidal ideation. In February 2015, the Veteran received a VA examination. The Veteran reported a daily depressed mood, that he attributed to not being able to work anymore due to his back and knee problems. The Veteran also endorsed anhedonia, sleep disturbance, concentration problems, and feelings of worthlessness. The examiner noted the Veteran reported moderate PTSD and depression symptoms. The Veteran reported being married for 27 years and no marital problems, although his wife could be “aggravating.” He reported not talking much to his older daughters; however, he stated he had a good relationship with his youngest daughter and step daughter. The Veteran stated that his typical day involved watching TV and taking care of his chickens. The Veteran reported he did not really have friends and that his last friendship lasted for about 10 years; however, it ended a few years ago due to living in different locations. He reported not considering his wife a friend. He reported he used to enjoy working on lawn mowers and cars, but he was no longer able to do so due to health problems and decreased interest/motivation and problems with concentration and attention. He reported he and his wife go out once per day to visit family members or go to eat. The examiner noted that the Veteran’s PTSD symptoms would cause moderate problems in occupational functioning due to decreased motivation/interest, sleep problems, and concentration/attention problems, as well as moderate problems with interpersonal relationships with co-workers and supervisors due to irritability. The examiner noted that the Veteran’s PTSD caused overall occupational and social impairment with reduced reliability and productivity. The Veteran did not report alcohol or drug abuse. The Veteran’s symptoms were noted as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted the Veteran was guarded during the interview, his mood was depressed, and his affect was dysphoric and slightly irritable. His hygiene was good, and he dressed casually and appropriately. The Veteran’s thinking was logical and organized, his speech was within normal limits, and he was alert, attentive, and oriented to person, place, time, and situation. The Veteran was noted as being capable of handling his financial affairs. After consideration of the medical and lay evidence, the Board finds that an evaluation in excess of 50 percent is not warranted. The Veteran’s PTSD has primarily been manifested by depression, anxiety, chronic sleep impairment, hypervigilance, suspiciousness, social isolation, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Board notes that the Veteran at no time has endorsed suicidal or homicidal ideation. Further, while the Veteran has difficulty in adapting to stressful circumstances, the evidence consistently shows that the Veteran had not experienced obsessional rituals which interfered with routine activities; speech that was illogical, obscure, or irrelevant; spatial disorientation; neglect of personal appearance and hygiene, or near-continuous panic affecting the ability to function independently, appropriately and effectively. Although the Veteran reported depression throughout the period, it did not manifest to the level of severity of being near-continuous and affecting the Veteran’s ability to function independently, appropriately, and effectively. In fact, the Veteran still goes out once a day with his wife and maintains taking care of his chickens. While the Veteran has problems relating to others, he did not demonstrate a complete inability to establish and maintain effective relationships, as he maintained a close relationship with his wife and reported a good relationship with his youngest daughter and step daughter. Additionally, the Veteran has been noted as having normal speech, logical thinking, and judgment. Moreover, the Veteran has not shown any violent behavior or had any legal issues. Therefore, given the above, the Board does not find that the overall frequency, severity, and duration of the Veteran’s PTSD rises to the level of severity as needed for a 70 percent rating. The Board also finds that the evidence of record does not support a rating of 100 percent. While the Veteran prefers being alone and has problems relating to others, he is not totally socially impaired, as he has continued to work on his relationship with his wife. The Veteran has also consistently been found able to handle his affairs, dress and groom appropriately, and have normal judgment. The Veteran even continues to participate in caring for his chickens, dog, and other animals. Thus, the evidence does not show that the Veteran has intermittent inability to perform activities of daily living. The Board acknowledges the Veteran has stated he is irritated and startled easily; however, there has been no evidence of violence or irrational behavior, nor has the Veteran demonstrated that he was/is a persistent danger of hurting others. Further, these occurrences do not appear to have grossly impaired the Veteran in his thought process/communication or caused grossly inappropriate behavior. While the Veteran has experienced depression, he has never endorsed suicidal ideation or a persistent danger of harming himself. The Veteran has shown no disorientation to time or place, or delusions or hallucinations, and has maintained logical thought processes. The Board also acknowledges the Veteran’s assertions that he is entitled to a higher rating because his symptoms are worse. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the Board has considered the Veteran’s statements and finds them credible and consistent with the rating assigned. Accordingly, the Board concludes that the preponderance of evidence is against the claim and an increased rating excess of 50 percent is not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Although the Board regret further delay, additional development is required prior to adjudication of the Veteran’s claims. 1. Entitlement to Service Connection: Back Disability The Veteran contends that his back condition is related to his active duty service, to include multiple complaints of back pain. The probative evidence of record shows the Veteran has been diagnosed with spondylosis, spina bifida, and lumbar strain. Moreover, his service treatment records show multiple complaints of back pain, to include in August 1970 following a lift accident, December 1970 with a diagnosis of low back strain and spina bifida, and a September 1971 complaint of back pack pain and spondylosis diagnosis. The Board notes that it has been over 40 years since the Veteran had an examination for his back disability. Further, although a 1976 VA examination noted the Veteran’s condition as congenital, the Veteran’s entry examination did not note any back condition. Moreover, an opinion on whether it is clear and unmistakable that the Veteran had a pre-existing condition, and whether his condition was related to or aggravated by his military service has not been provided. The Board acknowledges that the Veteran has provided a private opinion dated May 2015 that related his back disability to his active duty service. However, the Board notes that the physician provided no rationale as to why the Veteran’s back disability is related to his active duty service. Thus, the Board places low probative value on the private opinion. Given all of the above, the Board finds that a remand is required in order to obtain a medical examination with an opinion addressing the nature and etiologies of the claimed condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. TDIU The Board notes that the Veteran’s claim for TDIU is inextricably intertwined with the Veteran’s claim for service connection. Thus, this claim must be remanded along with his other pending claim. See Harris v. Derwinski 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding VA treatment records and private medical records relevant to the Veteran’s claim. 2. After all outstanding records have associated with the claims file, schedule the Veteran with an appropriate examiner to determine the etiology of the Veteran’s back disability. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, to include the Veteran’s competent lay statements, as well as the Veteran’s reports regarding the onset and progression of his current symptomatology, the examiner should opine as to the following: (a) Is it clear and unmistakable that the Veteran entered his period of active military service with a pre-existing back condition? (b) If YES, is it clear and unmistakable that the Veteran’s pre-existing back condition WAS NOT aggravated beyond the natural progress of the disorder by his active military service, to include his in-service back pain complaints? In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the pre-existing condition. (c) If the Veteran did NOT enter service with a pre-existing condition, is it less likely than not (50 percent probability or more) that the Veteran’s back disability is related to his active duty service, to include his August 1970 back injury, December 1970 complaint of back pain and spina bifida diagnosis, and his September 1971 lumbar strain? In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A complete rationale for all opinions expressed should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he/she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.