Citation Nr: 20021482 Decision Date: 03/26/20 Archive Date: 03/25/20 DOCKET NO. 17-47 390 DATE: March 26, 2020 ORDER New and material evidence having been received, the claim of service connection for right knee disability is reopened. New and material evidence having been received, the claim of service connection for neck condition is reopened. A rating of 70 percent, but not higher, for PTSD is granted. Service connection for right knee osteoarthritis is granted. Service connection for neck condition, diagnosed as degenerative disc disease, is granted. REMANDED Service connection for sleep apnea secondary to PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. New and material evidence was received by VA concerning the Veteran's previously denied claim of entitlement to service connection for right knee and neck conditions, which were most recently denied in a June 2010 rating decision; the Veteran was given notice of the determination and did not appeal. 2. The evidence demonstrates that the Veteran's PTSD has been productive of suicidal tendencies and occupational and social impairment with deficiencies in most areas throughout the appeal period. 3. The Veteran’s right knee condition had its onset and is related to service. 4. The Veteran’s neck condition its onset and is related to service. CONCLUSIONS OF LAW 1. New and material evidence having been submitted, the service connection claim for right knee and neck disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 2. The criteria for a rating of 70 percent, but not higher, from May 9, 2013 for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for service connection for right knee condition have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 4. The criteria for service connection for neck disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1989 to February 1996, including service in the Persian Gulf. The Veteran previously submitted a claim of entitlement to service connection for neck and right knee conditions, which were previously denied. Since that time, the Veteran submitted VA treatment records and lay statements regarding his claimed conditions. These documents and statements were new, not duplicative of evidence previously of record, and material in that they addressed the issue at hand. Thus, the Board finds that new and material evidence has been received to reopen his previously denied claim for neck and right knee conditions. See 38 C.F.R. § 3.156. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 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 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). PTSD The Veteran asserts that his PTSD warrants a 70 percent rating throughout the appeal. In support, the Veteran’s representative reports that his medical record supports that the Veteran suffers from suicidal ideation. See Representative brief (December 2019). The Veteran is currently rated at 50 percent under DC 9411. PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted where there is an 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is an 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the evidence shows 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. Ratings are assigned according to the manifestations of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The evidence supports a finding that the Veteran's disability picture for PTSD has more nearly approximated depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. Moreover, recurrent, involuntary, and intrusive distressing memories of the traumatic event(s), persistent negative emotional state, irritable behaviors, hypervigilance, and causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. The frequency, severity, and duration of the Veteran's impairment and assessing his disability picture, the Board finds that the preponderance of evidence demonstrates that his psychiatric disorder has approximated the schedular criteria for a rating of 70 percent. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The record also reflects that the Veteran has expressed his suicidal ideation. See VA medical examination (October 2016); Non-VA medical records (March 2016); and VA medical records (October 2018). Moreover, a specialist confirmed the Veteran’s suicidal ideation by stating in his report that the records contains numerous reports of suicidal ideation. See Medical opinion (December 2016). In so finding, the Board notes that the United States Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas."). Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports a 70 percent disability rating for the Veteran's PTSD from May 9, 2013. A rating higher of 70 is not warranted since the records does not shows 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. Considering the frequency, severity, and duration of the Veteran's impairment to assess his disability picture, the Board finds that the evidence shows that the Veteran's PTSD has approximated the criteria for a 70 percent rating. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports a 70 percent rating effective from May 9, 2013 for the Veteran's PTSD. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). 1. Right knee The Veteran reports that he is entitled to service connection for right knee ostearthritis. In support, the Veteran’s representative reports of many entries in his service treatment records pertaining to injuries in service to his knee. See Veteran’s representative brief (December 2019). Moreover, he indicated that the Veteran continued his medical treatment for his condition. Id. The Veteran has been diagnosed with right knee ostearthritis. See VA medical treatment record (January 2019). The Board acknowledges that on an August 2017 statement of the case (SOC) the RO stated that there was no link between the Veteran’s condition and service. See SOC (August 2017). However, the medical and lay evidence, shows that the Veteran had and was treated for his right knee pain in service and thereafter. See STR (September 1989, May 1991) and see also VA medical treatment records (October 2008 and January 2019). Further, in a July 1996 VA examination the Veteran reported that he injured his right knee in service and ever since has constant pain in his knee. See VA medical examination (July 1996). Indeed, the Veteran is competent to report his knee symptoms that began in service and the Board finds the Veteran's statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the medical and lay evidence, show that the Veteran's right knee condition had its onset in service and have been recurrent since that time. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's right knee condition had its onset during his military service. As such, service connection is granted. See 38 C.F.R. § 3.303 (a). 2. Neck The Veteran seeks service connection for a neck disability. In support, the Veteran’s representative reports that the Veteran injured his neck in service and his symptoms have continued since that time. See Veteran’s representative brief (December 2019). Moreover, he indicated that the Veteran continued his medical treatment for his condition. Id. The Veteran is currently diagnosed with degenerative disc disease. See VA medical treatment record (December 2015). The Board finds that the Veteran has a current condition in his cervical spine, thus establishing the first element for service connection. Additionally, he continued his medical treatment for his neck. See VA medical treatment records (September 2008, December 2015 and April 2016) and see also Statement in support of claim (February 2019). The Board acknowledges that on a on an August 2017 SOC the RO stated that there was no link between the Veteran’s condition and service. See SOC (August 2017). However, the medical and lay evidence, shows that the Veteran had and was treated for neck pain in service and thereafter. See Id and see also STR (March 1990). The Board finds that the medical and lay evidence linking the Veteran’s neck condition to service is probative, competent and credible. Additionally, the Veteran has various outpatient treatment records of his neck disability and treatment. Moreover, his service treatment records (STR) show his injury, restrictions and treatment in service. See STR (March 1990). The Veteran is competent to report his neck symptoms that began in service and the Board finds the Veteran's statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the lay evidence is consistent with other evidence of record, both medical and lay, and further finds that it is competent and credible. The Board finds that the medical and lay evidence, shows that the Veteran's neck disability had its onset in service and have been recurrent since that time. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's neck disability had its onset during his period of military service. As such, service connection is granted. See 38 C.F.R. § 3.303 (a). REASONS FOR REMAND Sleep apnea and TDIU The Veteran reports that service connection for sleep apnea secondary to PTSD is warranted. The Board finds it necessary for a medical opinion to determine the etiology, onset, nature and relation of his in-service injuries to his sleep apnea. Also, the VA examiner should opine if the Veteran’s service-connected disabilities, including his PTSD, cause or aggravate his sleep apnea. In addition, on May 2016 and December 2019 the Veteran submitted VA form 21-8940 seeking TDIU benefits. Moreover, on May 2016 he reported that he has been too disabled to work since January 2014. However, on December 2019 he reported that he is currently employed. This issue is intertwined with the ratings of his service-connected psychiatric disabilities and his now service-connected knee and neck conditions, as well as his pending claim of service connection for sleep apnea. As such, the Veteran’s TDIU claim must also be remanded. The matters are REMANDED for the following action: 1. Obtain complete VA treatment records of the Veteran’s sleep apnea. 2. Notify the Veteran that he may submit any medical evidence regarding the Veteran’s treatment for sleep apnea. He may also submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of any in-service and post-service symptoms of the disability. The Veteran also should be invited to submit lay evidence of the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Arrange for the Veteran to undergo a VA examination to determine the nature, onset and etiology of his sleep apnea, to include whether these conditions are due or caused by his in-service injuries or service-connected conditions, to specifically include PTSD. The examiner must opine as to whether it is at least as likely as not that the Veteran’s sleep apnea is related to or had its onset in service. The examiner must also opine as to whether the Veteran’s obstructive sleep apnea was caused or aggravated by his PTSD. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.