Citation Nr: 20078956 Decision Date: 12/15/20 Archive Date: 12/15/20 DOCKET NO. 17-18 150 DATE: December 15, 2020 ORDER Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling, is denied. Entitlement to service connection for left knee osteoarthritis is granted. Entitlement to service connection for right knee osteoarthritis is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s PTSD has manifested with symptoms such 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 worklike setting); and an inability to establish and maintain effective relationships. 2. The evidence is in at least relative equipoise as to whether the Veteran’s left knee osteoarthritis is a chronic disease that manifested with a year of discharge from active duty as shown by a continuity of symptomatology. 3. The evidence is in at least relative equipoise as to whether the Veteran’s right knee osteoarthritis is a chronic disease that manifested with a year of discharge from active duty as shown by a continuity of symptomatology. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating PTSD, currently rated as 50 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for entitlement to service connection for left knee osteoarthritis have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2019). 3. The criteria for entitlement to service connection for right knee osteoarthritis have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1959 to June 1967. This appeal to the Board of Veterans’ Appeals (Board) arose from merged appeals of September 2012 and May 2013 rating decisions issued by the Department of Veterans Affairs (VA). See October 2012 Notice of Disagreement (NOD); March 2014 Statement of the Case (SOC); May 2014 NOD; May 2014 Substantive Appeal (VA Form 9); April 2016 SOC; March 2017 VA Form 9. In July 2019, the Board remanded the claims for further development. July 2019 Board decision. The Board finds that there has been substantial compliance with its July 2019 remand directives. The Agency of Original Jurisdiction continued the denial of the Veteran’s claims. See June 2020 Supplemental Statement of the Case (SSOC). The claims are now back before the Board. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to an increased rating for PTSD, currently rated as 50 percent disabling. The Veteran asserts entitlement to an increased rating for PTSD based on worsening symptoms. See March 2017 VA Form 9; November 2020 Appellate brief. The Veteran’s PTSD is currently evaluated under Diagnostic Code 9411 and rated as 50 percent disabling since September 28, 2012. May 2013 Rating decision. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board has considered the entire record, but only the evidence pertinent to the rating criteria and current disability will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Under the General Rating Formula for Mental Disorders, a 50 percent is warranted for mental disorders that result in 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. The next higher rating of 70 percent 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; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is assignable 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. Id. When evaluating a mental disorder, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency 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). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 After careful and thorough review of the evidence, the Board finds that the Veteran’s PTSD has manifested with symptoms that warrant no more than a 50 percent rating. Medical treatment records show that the Veteran has had continuing treatment for his PTSD, but that the evidence does not support symptoms that warrant more than a 50 percent rating. The Veteran has consistently reported having irritability, anger, and sleep problems. See, e.g., December 2013 VA treatment evidence; December 2014 VA treatment evidence; August 2015 VA treatment evidence; April 2017 VA treatment evidence; October 2018 VA treatment evidence. The Veteran also reported having memory problems and testing showed slightly impaired recall and difficulty with language fluency. October 2017 VA treatment evidence. However, while the Veteran is easily upset or angered, he reports that he tries to keep his emotions under control and has not been physically aggressive. See December 2014 VA treatment evidence; September 2018 VA treatment evidence; October 2018 VA treatment evidence. His treatment provider noted that the Veteran was able to provide a detailed history about his prior treatments and medications, so there was no notable concerns about his memory problem. September 2018 VA treatment evidence. The Veteran’s treatment providers also consistently found the Veteran to be well groomed and independent with his activities of daily living. See, e.g., December 2014 VA treatment evidence; August 2015 VA treatment evidence; October 2018 VA treatment evidence; December 2019 VA treatment evidence. The Board finds this evidence does not support that the Veteran’s PTSD has manifested with symptoms such as obsessional rituals that interfere with routine activities; illogical, obscure, or irrelevant speech; periods of violence; spatial disorientation; and neglect of personal appearance and hygiene. The medical treatment evidence also shows that the Veteran has routinely denied having suicidal or homicidal ideation during the period on appeal. During a December 2013 treatment visit, the Veteran reported having past thoughts of suicide, but denied current suicidal ideation. December 2013 VA treatment evidence. In March 2017, the Veteran did report that he sometimes thinks “what’s the point of living,” but denied having thoughts or an intent to take his own life. March 2017 VA treatment evidence. Later treatment notes indicate that the Veteran was concerned over the state of the country and wanting a sense of purpose for his life. April 2017 VA treatment evidence. He denied having “true suicidal plan or intent,” but his treatment provider assessed him as a moderate risk to himself at that time. Id. Subsequent treatment visits again showed no evidence of suicidal ideation. See, e.g., April 2017 VA treatment evidence; May 2017 VA treatment evidence. The Board finds that the March and April 2017 treatment visits were atypical instances in which the Veteran questioned the purpose of his life and does not depict his PTSD disability as a whole. The Veteran was also afforded January 2013 and December 2019 VA examinations for his PTSD, which support no more than a 50 percent rating. The January 2013 VA examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. January 2013 VA examination for PTSD. The examiner based the opinion on finding the Veteran to have symptoms of intrusive thoughts, avoidance behavior, chronic sleep problems, irritability or anger outbursts, hypervigilance, depression mood, anxiety, mild memory loss, disturbance in motivation and mood, and difficulty establishing relationships. See id. The December 2019 VA examiner also opined that the Veteran had occupational and social impairment with reduced reliability and productivity based on similar symptoms. See December 2019 VA examination for PTSD. The VA examiners are medical professionals qualified to evaluate the Veteran’s mental health symptoms, who had the opportunity to examine the Veteran and review the evidence, and provided a detailed report to support their findings and opinions. The Board finds their findings and opinions to be probative. The Board considered the Veteran’s statement that his PTSD symptoms warrant a rating higher than 50 percent. The Board also considered the March 2017 lay statement from his spouse, M L, about the Veteran’s sleep problems, irritability, and struggle to keep his emotions in check. While the Veteran is competent to report his symptoms and his wife is competent to report symptoms she observed, they are not competent to state whether the Veteran’s symptoms warrant a specific rating under the schedule for rating disabilities. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the lay statement from the Veteran’s spouse to be probative in describing the impact of the Veteran’s symptoms, but his mood swings and sleep problems are consistent with the rating criteria for a 50 percent rating. His spouse also relates that she believes the Veteran had thoughts of suicide due to the death of their 4-year old son, which may be consistent with the Veteran’s report to his treatment provider of having past thoughts of suicide, but the medical evidence shows that the Veteran routinely denied having suicidal ideation during the period on appeal. The Board also considered the Veteran’s representative’s contention that the Veteran has suicidal ideation, anxiety, and depression; and that the December 2019 VA examiner’s findings of unprovoked irritability, anger outbursts, near continuous chronic depression, and sleep impairment warrant a higher rating. See March 2017 VA Form 9; November 2020 Appellate brief. As discussed above, the preponderance of the evidence is against finding suicidal ideation as part of the Veteran’s overall PTSD disability picture. While the Veteran is easily angered, he has never been physically aggressive. Finally, the Veteran has, commendably, been able to function independently despite his continuous depressive symptoms. The Board, thus, finds that the representative’s contentions do not support finding a rating higher than 50 percent for the Veteran’s PTSD. Based on the more probative lay and medical evidence, the Board finds that the Veteran’s PTSD has manifested with symptoms such as depressed mood, anxiety, sleep problems, irritability, slightly impaired language fluency, impaired memory, intrusive thoughts, and difficulty in establishing and maintaining effective relationships. However, the evidence is against finding that the Veteran suicidal ideation, problems with performing routine activities or activities of daily living, illogical speech, spatial disorientation, or an inability to establish and maintain relationships. Accordingly, entitlement to a rating higher than 50 percent for PTSD is not warranted. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1112, 1133; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Certain chronic diseases, such as arthritis, which are manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, if a chronic disease listed at 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) is noted during service or the presumptive period, but not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, 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 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 Veteran 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(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for left knee osteoarthritis. The Veteran asserts entitlement to service connection for his left knee due to an in service injury. May 2014 VA Form 9. The evidence shows that the Veteran has a current left knee disability diagnosed as osteoarthritis. February 2012 VA examination for knee and lower leg conditions. The evidence also shows that the Veteran had an in service left knee injury when he fell and skinned his knee on a railroad track. July 1962 Service treatment records. The question remaining for the Board is whether the evidence supports that the Veteran’s left knee osteoarthritis manifested as a chronic disease within a year of discharge from active duty or if the evidence otherwise supports it was incurred or related to service. Service treatment records show that the Veteran injured his left knee in July 1962, diagnosed as left knee abrasion, from falling and skidding on railroad tracks. July 1962 Service treatment record. While x-rays taken at the time were negative for pathology, treatment notes indicate he was put on light duty for at least a week due to his injury. See July 1962 Service treatment records. Service treatment records do not show additional treatment for his left knee, but the Veteran reported having a “trick or locked knee” on his Report of Medical History during separation. May 1967 Report of Medical History. The medical treatment evidence since separation shows that the Veteran reported “off/on” knee pain in May 2012, but was not interested in treatment. May 2012 VA treatment evidence. The claims file shows no other evidence of medical treatment for his left knee since separation, including current treatment. The Board also considered the Veteran’s report of having intermittent knee pain since his in service injury that he treated conservatively, but has progressively worsened over time. February 2012 VA examination for knee and lower leg conditions. The Veteran also reported that he sought treatment with a private medical provider in 1970, but was told his knees were normal. January 2020 VA examination for knee and lower leg conditions. The Board finds the Veteran’s service treatment records support that the Veteran had continuing knee pain since his in service injury which he did not seek medical treatment. This is consistent with the evidence since separation, which shows the Veteran’s reported having intermittent knee pain, but declined treatment. In addition, while the Veteran reported that a private treatment provider found his knees to be normal shortly after separation, this does support that the Veteran continued to have knee pain after separation. The medical treatment and lay evidence support that the Veteran had a continuity of symptomatology for his left knee until his diagnosis of left knee osteoarthritis in 2012. The Board recognizes that the February 2012, December 2019, and January 2020 VA examiners each found that the Veteran’s left knee osteoarthritis was less likely than not due to his in service knee injury. See February 2012 VA examination for knee and lower leg conditions; December 2019 VA examination for knee and lower leg conditions; January 2020 VA examination for knee and lower leg conditions. However, the VA examiners focused on the lack of documented medical evidence. The VA examiners are medical professionals qualified to opine on the cause of the Veteran’s left knee osteoarthritis and their opinions do raise a reasonable doubt as to whether the Veteran’s complaints of knee pain since service support a continuity of symptomology. In resolving any reasonable doubt in favor of the Veteran, the Board finds the evidence to support that the Veteran’s left knee osteoarthritis manifested during service based on evidence showing a continuity of symptomatology. Accordingly, entitlement to service connection for left knee osteoarthritis is warranted. 3. Entitlement to service connection for right knee osteoarthritis. The Veteran asserts entitlement to service connection for his right knee due to an in service injury. May 2014 VA Form 9. The evidence shows that the Veteran has a current right knee disability diagnosed as osteoarthritis. February 2012 VA examination for knee and lower leg conditions. The evidence also shows that the Veteran had an in service right knee injury that was tender and painful for at least three days and diagnosed as a mild sprain of the knee. April 1963 Service treatment records. The question remaining for the Board is whether the evidence supports that the Veteran’s right knee osteoarthritis manifested as a chronic disease within a year of discharge from active duty or if the evidence otherwise supports it was incurred or related to service. As with the Veteran’s left knee, a right knee x-ray during service was negative, the first medical evidence of osteoarthritis in his right knee was not until 2012, and the VA examiners each opined that it is less likely than not that his right knee osteoarthritis was incurred during service. April 1963 Service treatment record; February 2012 VA examination for knee and lower leg conditions; December 2019 VA examination for knee and lower leg conditions; January 2020 VA examination for knee and lower leg conditions. However, in resolving any reasonable doubt in favor of the Veteran, the Board finds that the evidence shows that the evidence supports a continuity of symptomatology for his right knee osteoarthritis for the same reason. See May 1967 Report of Medical History; February 2012 VA examination for knee and lower leg conditions; May 2012 VA treatment evidence; January 2020 VA examination for knee and lower leg conditions. (Continued on next page)   Accordingly, the Board finds that entitlement to service connection for right knee osteoarthritis is warranted. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lin 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.