Citation Nr: 20007680 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 17-35 012 DATE: January 29, 2020 ORDER The appeal to reopen a claim for service connection for a left knee disability is granted. The appeal to reopen a claim for service connection for a right knee disability is granted. The appeal to reopen a claim for service connection for a right shoulder disability is granted. An earlier effective date than July 15, 2013 for an increased rating of 70 percent for posttraumatic stress disorder (PTSD) is denied. An increased rating higher than 70 percent for service-connected PTSD is denied. REMANDED Service connection for a left knee disability is remanded. Service connection for a right knee disability is remanded. Service connection for a right shoulder disability is remanded. Service connection for bilateral hip disabilities is remanded. FINDINGS OF FACT 1. A February 2005 rating decision denied reopening a claim for service connection for a left knee disability because new and material evidence had not been received. In a February 2001 rating decision, the Agency of Original Jurisdiction (AOJ) had originally denied service connection because there was no evidence of a current left knee disability. The Veteran did not appeal the February 2005 decision, and no new evidence was received within a year after the decision. Therefore, the decision became final. 2. Evidence received since the February 2005 denial, including an April 2007 VA treatment record showing left knee tenderness and an April 2007 x-ray report showing mild effusion, was not of record at that time, relates to an unestablished fact necessary to substantiate the underlying claim of service connection (possible existence of a current disability), and raises a reasonable possibility of substantiating that claim. 3. A February 2005 rating decision denied service connection for a right knee disability because the evidence did not show a current disability. The Veteran did not appeal the decision, and no new evidence was received within a year after the decision. Therefore, the decision became final. 4. Evidence received since the February 2005 denial, including an April 2007 VA treatment record where the Veteran reported right knee pain and the VA physician stated that the Veteran may have fibromyalgia, was not of record at that time, relates to an unestablished fact necessary to substantiate the underlying claim of service connection (possible existence of a current disability), and raises a reasonable possibility of substantiating that claim. 5. A February 2005 rating decision denied service connection for a right shoulder disability because the evidence did not show a current disability incurred in or related to service. The Veteran did not appeal the decision, and new evidence was not received within a year after the decision. Therefore, the decision became final. 6. Evidence received since the February 2005 denial, including an April 2007 VA treatment record showing right shoulder decreased range of motion, was not of record at that time, relates to an unestablished fact necessary to substantiate the underlying claim of service connection (possible existence of a current disability), and raises a reasonable possibility of substantiating that claim. 7. There was not a factually ascertainable increase in the severity of the Veteran’s service-connected PTSD disability between June 11, 2013 (the date of the final Board decision denying an increased rating higher than 50 percent for PTSD) and July 15, 2013 (the date of the claim for a non-initial increased rating). 8. During the entire appeal period, the Veteran’s PTSD symptoms, as detailed in VA and private examination reports, have been manifested, at worst, by occupational and social impairment with deficiencies in most areas. There is no lay or medical evidence of total social impairment. CONCLUSIONS OF LAW 1. The February 2005 rating decision denying service connection for a left knee disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the February 2005 rating decision, which denied service connection for a left knee disability, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The February 2005 rating decision denying service connection for a right knee disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 4. Evidence received after the February 2005 rating decision, which denied service connection for a claimed right knee disability, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 5. The February 2005 rating decision denying service connection for a right shoulder disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 6. Evidence received since the February 2005 rating decision, which denied service connection for a right shoulder disability, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 7. The criteria for an earlier effective date than July 15, 2013 for the non-initial increased rating of 70 percent for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 8. A disability rating higher than 70 percent is not warranted for service-connected PTSD. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from March 1999 to January 2001 as an infantryman in the United States Army. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision. At the outset, the Board would like to recognize the Veteran’s March 2004 written statement explaining how his service with the elite 82nd Airborne Division and in Kosovo affected his physical and mental health. He did not seek to treat or document each injury, but he emphasized that he lives with the reminder of the physical and psychological toll of his service. As also noted by the Veteran, he wore the cloth of our country in harm’s way and honorably performed his duty. As such, he is owed careful consideration of his claims for the benefits he has earned and deserved. The Board extends its sincere appreciation to the Veteran for his service and for his patience in explaining the basis for his claims while living with significant disability. The Veteran was previously represented by a private attorney in this matter. In August 2019, the attorney submitted a motion to withdraw as the Veteran’s representative. The attorney provided good cause for the withdrawal and the required notice to the Veteran. The Veteran did not file a response to the motion within 30 days. Accordingly, the motion for withdrawal is granted. 38 C.F.R. § 20.608. 1. Whether new and material evidence has been received to reopen a claim for service connection for a left knee disability For the reasons outlined above, reopening is warranted. 2. Whether new and material evidence has been received to reopen a claim for service connection for a right knee disability For the reasons outlined above, reopening is warranted. 3. Whether new and material evidence has been received to reopen a claim for service connection for a right shoulder disability For the reasons outlined above, reopening is warranted. 4. An effective date earlier than July 15, 2013 for increased disability rating of 70 percent for PTSD The Veteran is seeking an earlier effective date than July 15, 2013 for the 70 percent disability rating for PTSD assigned by the RO in a June 2015 rating decision. In general, the effective date of an award of disability compensation shall be the date of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). An exception to this rule is in the case of non-initial increased rating claims when it is factually ascertainable that an increase in disability occurred within the one-year period prior to the date of the claim. In this case, the effective date will be the date the increase was shown. 38 C.F.R. § 3.400(o)(2). 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 983-84 (Fed. Cir. 2010); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In a June 11, 2013 decision, the Board denied an increased rating higher than 50 percent for PTSD. The Veteran did not appeal this decision; however, in a July 15, 2013 written statement, the Veteran’s then-representative stated that the Veteran had not been notified of a previously scheduled VA examination and asked to be scheduled for another examination. The AOJ characterized this statement as a new claim for a non-initial increased rating. Following the Veteran’s May 2015 VA mental health examination, in a June 2015 rating decision the AOJ assigned an increased rating of 70 percent, effective the date of the Veteran’s July 15, 2013 claim. At issue here, therefore, is whether the evidence shows a factually ascertainable worsening of the Veteran’s PTSD between the day following the Board’s decision denying a rating higher than 50 percent (June 12, 2013) and the current effective date of the 70 percent rating (July 15, 2013). Neither the Veteran nor the Veteran’s previous representatives provided any evidence or argument explaining why an earlier date would be warranted. Nor does a careful review of the file reveal lay or medical evidence of a factually ascertainable worsening of the Veteran’s PTSD between the date of the Board’s decision and the Veteran’s claim for an increased rating. Because there is no evidence to support an earlier effective date, the Veteran’s claim for an earlier effective date must be denied. 5. An increased rating higher than 70 percent for service-connected PTSD The Veteran is requesting a higher rating for service-connected PTSD, currently rated as 70 percent disabling under DC 9411, 38 C.F.R. § 4.130. Legal Criteria Disability ratings are based on average impairment in earning capacity resulting from a disability and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1110; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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). This may be due to such symptoms as, for example: 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. A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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 list of symptoms in the General Formula does not constitute an exhaustive list, but merely provides examples of the type and degree of symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. 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). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. The May 2015 VA examiner noted the Veteran’s mental health symptoms as depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The examiner stated that the Veteran’s only effective social relationship is with his wife. On examination, the Veteran displayed a flattened affect and reported frequent frustration and anger. He denied suicidal ideation, homicidal ideation, hallucinations, and delusions. The examiner concluded that the Veteran had occupational and social impairment with deficiencies in most areas, but that he was not totally occupationally and socially impaired. Finally, the examiner noted that the Veteran could manage his own financial affairs. During his November 2016 private mental health examination, the Veteran reported feeling anxious and depressed. He was concerned about increasing short- and long-term memory loss, including remembering basic information. He had been married for nine years and shares household chores and cooking with his wife. He maintains hygiene. He described himself as socially isolated and withdrawn. For example, he does not grocery shop because too many people annoy him. He also reported seeing shadow figures, which the examiner characterized as visual hallucinations. The examiner reported the Veteran’s PTSD symptoms as near continuous panic or depression, difficulty and inability in establishing and maintaining effective work and social relationships, and peristent hallucinations or delusions. The Veteran denied suicidal or homicidal ideation, difficulty maintaining hygiene, or disorientation to time or place. On examination, the Veteran’s attention, speech, and thought content were normal and appropriate. His fund of knowledge and intellectual abilities were average. The examiner stated that the Veteran was not in danger of hurting himself or others, and that he could manage his financial affairs. The examiner concluded that the Veteran’s service-connected mental illness has resulted in significant, but not total, occupational and social impairment. Analysis After a careful review of the evidence, the Board finds that a rating higher than 70 percent is not warranted. A rating of 100 percent, the next level at which the Veteran could receive benefits, requires a showing of total occupational and social impairment. After thoroughly reviewing the evidence, as summarized above, the Board finds that a 100 percent rating for PTSD is not warranted because there is simply not evidence suggesting the Veteran was totally socially impaired due to PTSD. Rather, the evidence indicates that he consistently denied symptoms of a severity comparable to those listed as representing examples of the 100 percent disability rating. For example, he lives independently and can manage his own finances. His hygiene, speech, thought process, and orientation were recorded as normal. He has been married since for nine years and shares household chores with his wife. He denied suicidal and homicidal ideation. Both examiners stated that the Veteran is not in peristent danger of harming himself or others. The record does reflect the Veteran’s report of seeing shadow figures, labeled by the November 2016 examiner as visual hallucinations. In the VA examinations, the Veteran repeatedly and consistently denied hallucinations or delusions and during the November 2016 examination the Veteran’s thought content was reported as being normal. The November 2016 examiner also checked the box indicating that the Veteran has memory loss for the names of close relatives, own occupation, or even his name. However, the Board finds this notation inconsistent with the Veteran’s prior examination reports which note much more mild memory loss and, most crucially, with the remainder of the November 2016 report. For example, the examiner reported the Veteran’s mental status examination results as largely normal, including normal fund of knowledge, intellectual abilities, and ability to interpret proverbs. The Veteran was able to provide detailed information about his family, social, and occupational history. The examiner also stated that the Veteran could manage his own financial affairs. In the report’s narrative section, the examiner described the Veteran’s reported memory loss as mild with impairment of long- and short-term memory and difficulty remembering relative’s names. The examiner did not note, and the record does not otherwise reflect, that the Veteran has been ever been unable to remember his own name, his wife’s name, or his occupation. Therefore, the Board finds that the examiner’s notation indicating that the Veteran’s memory loss is so severe he cannot remember his own name or occupation is not credible because it is inconsistent with the examiner’s own notations indicating mild memory loss and a largely normal mental status examination (which are, themselves, consistent with the rest of the evidence of record). In summary, there is no lay or medical evidence suggesting total social impairment. The Veteran lives with his wife, can manage financial affairs, had a largely normal mental status examination, maintains hygiene, cooks, and performs household chores. As discussed above, neither examiner concluded that the Veteran is totally socially impaired. To the extent the November 2016 examiner found that the Veteran’s memory loss was severe enough to interfere with remembering basic information such as name and occupation, the Board, as discussed in detail above, finds this not credible because it is internally inconsistent with the examiner’s detailed documentation of the Veteran’s reports and mental status examination. The Board also notes the Veteran’s reports of seeing shadow figures. However, the Veteran denied hallucinations and delusions in his previous examination and treatment, and his thought content was reported as being normal during both examinations of record. Overall, the clear and consistent picture revealed after a careful review of the evidence is that the Veteran has significant psychiatric symptoms and is seriously, but not totally, socially impaired. Consequently, an increased rating higher than 70 percent is not warranted. The Board acknowledges the Veteran’s competent and credible reports of relevant symptoms and appreciates his diligent efforts to describe these symptoms while living with significant disability. These lay statements are competent and credible and consistent with the medical evidence of record and the assigned rating. To the extent that the Veteran believes that a higher rating is warranted, this belief is outweighed by the more probative medical evidence of record and the findings of the VA examiners. Based on the examiners’ reports and the consideration of the Veteran’s reported symptoms, a rating higher than 70 percent for PTSD is not warranted. The Board notes that this decision does not leave the Veteran without recourse. If his PTSD worsens, he is encouraged to file a new claim for an increased disability rating. REASONS FOR REMAND 6. Service connection for a left knee disability is remanded. 7. Service connection for a right knee disability is remanded. 8. Service connection for a right shoulder disability is remanded. 9. Service connection for bilateral hip disabilities is remanded. Because the Board has reopened the Veteran’s service connection claims for left knee, right shoulder, and bilateral hip disabilities, a remand is required for the AOJ to adjudicate these claims on the merits. In addition, the Veteran should be afforded an additional VA examination to assess the nature and cause of any current left knee or right shoulder disabilities. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Obtain any updated VA treatment records. 3. Send the Veteran a letter asking him to identify any relevant treatment records not already associated with the claims file, and to authorize VA to obtain available records. In the letter, please also provide the Veteran with the following information which hopefully will explain what information the Veteran could provide to support his claims. VA has denied your claims because the evidence does not show a relationship between your service and current knee, hip, and right shoulder disabilities. You are strongly encouraged to send in evidence showing 1) you have current knee, right shoulder, and hip disabilities (current means present at any time from June 2014 to present); 2) an in-service injury (this is already shown for your left and right knees); and 3) the connection/causal link between 1) and 2). For example, you could ask a local doctor to examine your joints and provide a statement indicating that it is at least as likely as not (50 percent or greater) that your current disabilities are related to the Veteran’s service, to include the documented right knee injury and the general wear and tear reported by the Veteran. Any such letter MUST contain a DETAILED explanation for the doctor’s conclusion. You are also welcome to submit additional lay evidence such as a letter describing in detail the onset and development of your current claimed disabilities and why you believe they are related to service. 4. Then schedule the Veteran for an appropriate VA examination (coordinating with the U.S. Embassy in Lima, Peru to schedule, if necessary) to evaluate the nature and cause of the Veteran’s claimed left and right knee, right shoulder, and left and right hip disabilities. Examination Instructions The examiner should answer the following questions based on (1) a review of the claims file; (2) interview and examination of the Veteran; and (3) the results of any needed diagnostic testing. Please note that the Veteran can report observable symptoms, and, for the purposes of this examination, please assume the Veteran’s reports to be credible. [The Board draws the examiner’s attention to the Veteran’s March 2005 notice of disagreement (NOD) where the Veteran explains how his knee and shoulder, were beat up while serving with the 82nd Airborne Division and in Kosovo, the April 2007 left knee and bilateral hip x-ray report, and the April 2007 VA treatment record showing the abnormal left knee and right shoulder range of motion examinations, along with the Veteran’s report of continued pain, which hopefully will be helpful to the examiner.] a) Please identify all currently diagnosed left and right hip, left and right knee, and right shoulder disabilities. Current means present at any time from June 2014 to present. Please note that for VA disability purposes, pain with functional impairment is considered a disability, even without an associated specific diagnosis. If the Veteran does not have a current disability related to his hips, knees, or right shoulder, please explain this conclusion in detail. b) Is it at least as likely as not (a 50 percent or greater probability) that any diagnosed left or right knee, right shoulder, or left or right hip disability was incurred in or otherwise related to the Veteran’s active service? Please specifically consider and discuss the Veteran’s assertion that his service took a toll on his body, and that his current disabilities represent progression of that initial wear and tear. c) Please comment on the April 2007 VA treatment record where the physician noted that the Veteran’s diffuse joint pain raised concern for possible fibromyalgia. In your response, please assess the Veteran’s symptoms holistically, i.e., consider the Veteran’s reports of “joint pain” as a WHOLE. A detailed explanation (rationale) is required for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Robinson, 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.