Citation Nr: 21002102 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 19-36 693 DATE: January 12, 2021 THE ISSUES 1. Entitlement to an increased initial disability rating in excess of 50 percent for service-connected post-traumatic stress disorder (PTSD). 2. Entitlement to an increased initial disability rating in excess of 10 percent for a service-connected left knee meniscal tear status post-surgery based on painful motion. 3. Entitlement to a compensable initial disability rating for a service-connected left knee meniscal tear status post-surgery based on limitation of extension. 4. Entitlement to an increased initial disability rating in excess of 10 percent for a cervical spine disability. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ORDER Entitlement to an increased initial disability rating in excess of 50 percent for PTSD is denied. REMANDED Entitlement to an increased initial disability rating in excess of 10 percent for a service-connected left knee meniscal tear status post-surgery based on painful motion is remanded. Entitlement to a compensable initial disability rating for a service-connected left knee meniscal tear status post-surgery based on limitation of extension is remanded. Entitlement to an increased initial disability rating in excess of 10 percent for a cervical spine disability is remanded. Entitlement to a TDIU is remanded. FINDINGS OF FACT For the entire period on appeal the Veteran’s service connected PTSD has been manifested by symptoms of occupational and social impairment with reduced reliability and productivity as a result of his psychiatric symptomatology, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for the assignment of an initial disability rating in excess of 50 percent for service-connected PTSD have not been met or been approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 2008 to April 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In the July 2019 VA examinations, the Veteran raised the issue of entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of entitlement to increased disability ratings for cervical spine and left knee disabilities, as well as entitlement to a TDIU are addressed in the REMAND section of this decision. 1. Entitlement to an increased initial disability rating in excess of 50 percent for PTSD is denied. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Board has considered the applicability of a staged ratings but finds that it is unnecessary. In the instant case, PTSD is currently rated at 50 percent pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. DC 9411 and other DCs addressing psychiatric disabilities are addressed under the General Rating Formula for Mental Disorders. Ratings are assigned according to the manifestation of particular symptoms. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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. A 70 percent 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 worklike setting); inability to establish and maintain effective relationships. A rating of 100 percent is warranted for 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. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) the Federal Circuit stated that a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. It was further noted that § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas. The such symptoms as language means for example, and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran and his representative assert that the 50 percent rating for PTSD does not accurately depict the severity of the disability. They assert that the Veteran is entitled to an increased evaluation. By way of background, the Veteran was originally assigned a 30 percent initial disability rating in a July 2016 rating decision, however the initial disability rating was later raised to 50 percent in a subsequent August 2019 rating decision. The Veteran was afforded a VA psychiatric examination prior to separation from service in January 2016. After a complete review of the case file and an in-person examination, the VA examiner indicated that the Veteran’s level of occupational and social impairment was best summarized by, “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.” Symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events and difficulty in adapting to stressful circumstances, including work or a work like setting. During the examination, the Veteran was pleasant and cooperative, and he was oriented in all major spheres. The Veteran’s speech was unremarkable, and his thought process was logical and goal oriented. His mood was euthymic, and his affect varied depending upon the subjects discussed. The Veteran denied suicidal and homicidal ideation, his judgement was intact, and he demonstrated adequate insight into his current symptoms. The Veteran was noted to have recurrent distressing dreams. The Veteran was next afforded a VA psychiatric examination in July 2019. After a complete review of the case file and an in-person examination, the VA examiner indicated that the Veteran’s level of occupational and social impairment was best summarized by, “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.” Symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, and difficulty in adapting establishing and maintaining effective work and social relationships. The Veteran arrived on time for the examination. During the examination, the Veteran was cooperative. His mood was dysthymic with congruent affect. The Veteran was noted to have a difficult time expressing his thoughts and feelings. There was psychomotor retardation noted. The Veteran denied suicidal and homicidal ideation, and did not display symptoms of hallucinations. His insight and judgement were fair. However, his eye contact was minimal. The Veteran was noted to have recurrent distressing dreams. Since the previous examination, the Veteran reported that he went through a breakup with his girlfriend, and that he lacked motivation and focus to work effectively. The Veteran described having difficulty maintaining employment due to his lack of motivation and focus. However, the Veteran reported that he had a positive relationship with his father, and that his father got him to medical appointments on time. The Veteran contends that he is entitled to an evaluation in excess of 50 percent for PTSD. PTSD is currently rated at 50 percent under Diagnostic Code (DC) 9411, 38 C.F.R. § 4.130. This was based upon occupational and social impairment with reduced reliability and productivity due to symptoms such as depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The weight of competent lay and medical evidence indicates that a higher evaluation is not warranted. A higher evaluation is not warranted unless there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked 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); inability to establish and maintain effective relationships. The Board finds that the records describe a consistent picture of symptomatology associated with the Veteran’s PTSD. The most probative evidence is the results of the January 2016 and July 2019 VA examinations. The Board finds that given the medical and lay evidence of record, the Veteran’s service-connected PTSD does not more closely approximate an increased disability rating. The Veteran claims he has experienced depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, and difficulty in adapting establishing and maintaining effective work and social relationships. Therefore, the Board finds that given the Veteran’s entire disability picture, PTSD does not more closely approximated a disability rating in excess of 50 percent. The Veteran’s symptoms are not of the severity, frequency, and duration to warrant a 70 percent rating. There is no question that the Veteran has recurrent nightmares. He has further been noted to have difficulty with interrupted sleep because of nightmares, and has been found on objective examinations to have feelings of depression. He has been reported to be anxious at times. Although he has exhibited these obvious manifestations of his PTSD, the record simply does not reflect the 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 irritability, with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, a severe enough level of difficulty in adapting to stressful circumstances (including work or work-like setting), and/or an inability to establish and maintain effective relationships that would support a rating in excess of 50 percent under Diagnostic Code 9411. Specifically, there is no documentation, clinical or otherwise, of suicidal ideation, homicidal ideation, or obsessional rituals. The Veteran has never been described as being a danger to himself or others. He had no suicidal or homicidal thoughts upon examination in January 2016 or July 2019. By the same token, there has been no indication of obsessional rituals which interfere with routine activities. There has been no evidence of disorganized thinking. Without exception, the Veteran has never been described as neglectful of his personal appearance and hygiene. Neither the January 2016 nor the July 2019 indicated the Veteran was inappropriately dressed or groomed. While, the Veteran has experienced some anxiety, near continuous panic has never been noted, clinically or otherwise. On the other hand, although the Veteran’s mood was described in the most recent VA examination as dysthymic, his depression has never been shown to affect his ability to function independently, appropriately and effectively. In explanation, the record shows that he has effectively maintained a continuous schedule of medical appointments in the treatment of his various disabilities, and has functioned appropriately during those appointments. Regarding intermittently illogical, obscure, or irrelevant speech, it is noteworthy that while the examiner noted that the Veteran had trouble expressing himself and made minimal eye contact in the in the July 2019 VA examination, the examiner was able to illicit details about the Veteran’s life and psychiatric condition and the Veteran has also attended VA C&P examinations and appeared to communicate effectively. There is no other documentation of difficulty therewith being attributed to his PTSD, and he appears to have behaved appropriately during each appointment. Although the Veteran may have some difficulty in establishing and maintaining effective work and social relationships, as document by the VA examination and illustrated by the fact that the Veteran recently went through a breakup, but there is no demonstration of a complete inability to establish or maintain effective relationships, as demonstrated by his ongoing positive relationship with his father. The criteria for establishing entitlement to a 70 percent rating are not shown by the evidence. Even more clearly, a rating in excess of 70 percent is not warranted. The Veteran does not have the symptoms required for a 100 percent rating, such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, memory loss for names of close relatives or his own name, and intermittent inability to perform basic minimal hygiene. In sum, there is insufficient evidence that the Veteran’s symptoms are of the severity and frequency to cause the level of occupational and social impairment associated with a higher disability rating than the current 50 percent evaluation. Mauerhan, 16 Vet. App. 436, 442 (2002). The current 50 percent rating contemplates such occupational and social impairment. The medical record in this case substantiates no more than this level of PTSD impairment. While not dispositive, the symptoms listed in the rating criteria for a 70 percent rating are all absent in this case and the PTSD disability picture more nearly approximates the criteria for a 50 percent rating, than a 70 percent rating. See Bankhead v. Shulkin, No. 15-2404, slip op. at 10 (U.S. Vet. App. Mar. 27, 2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). We have also considered 38 C.F.R. § 4.7. The weight of the evidence, however, is against an increase. Accordingly, the Board finds that the Veteran has been most appropriately evaluated at his current rating and that the preponderance of the evidence is against a rating in excess of 50 percent. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an increased initial disability rating in excess of 10 percent for a service-connected left knee meniscal tear status post-surgery based on painful motion is remanded. 2. Entitlement to a compensable initial disability rating for a service-connected left knee meniscal tear status post-surgery based on limitation of extension is remanded. 3. Entitlement to an increased initial disability rating in excess of 10 percent for a cervical spine disability is remanded. The Veteran seeks higher initial disability ratings for his left knee disability. He is current receipt of a 10 percent disability rating based on painful movement and a noncompensable disability rating based on limitation of extension of the left knee. Additionally, the Veteran seeks an initial disability rating in excess of 10 percent for his cervical spine disability. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) clarified the responsibilities of a VA examiner and the Board when an examiner is asked to provide an opinion as to additional functional loss during flare-ups of musculoskeletal disability pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Case law and VA guidelines anticipate that examiners will offer flare-up opinions based on estimates derived from information procured from relevant sources, including lay (non-expert) statements. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. Sharp found a VA examination to be inadequate because the examiner, although acknowledging that the Veteran was not then suffering from a flare of any of his conditions, failed to ascertain adequate information, such as frequency, duration, characteristics, severity, and functional loss, regarding the flare-ups by alternative means. Additionally, in Correia v. McDonald, 28 Vet. App. 158, 169- 170 (2016), the Court held that an adequate VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and with range-of-motion measurements of the opposite undamaged joint. The Veteran was first afforded a VA examination for his left knee disability prior to separation from service in January 2016. The Veteran reported flare-ups of his left knee disability which reduced his standing tolerance to 10 minutes. On examination, the VA examiner noted that the Veteran was not currently experiencing a flare-up and as such, the examiner was unable to describe the Veteran’s loss of range of motion without resort to mere speculation because the Veteran was not currently having a flare-up. Initial range of motion testing revealed abnormal range of motion of the left knee. The examiner noted a meniscal tear of the left knee that was repaired in 2012 and the use of a knee brace. However, the examiner did not include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. The Veteran was afforded a VA examination for his cervical spine disability prior to separation from service in January 2016. The Veteran reported flare-ups of his cervical disability which consisted of reduced motion that impacted his ability to rotate his head while driving. On examination, the VA examiner noted that the Veteran was not currently experiencing a flare-up and as such, the examiner was unable to describe the Veteran’s loss of range of motion without resort to mere speculation because the Veteran was not currently having a flare-up. Initial range of motion testing revealed abnormal range of motion of the cervical spine. However, the examiner did not include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. The Veteran was last afforded a VA examination for his left knee disability in August 2019. Initial range of motion testing revealed abnormal range of motion of the left knee. The Veteran reported flare-ups of his left knee disability which were characterized by pain and tenderness and brought on by physical activity or merely standing. On examination, the VA examiner noted that the Veteran was not currently experiencing a flare-up but was able to describe in terms of range of motion the Veteran experienced during flare-ups as a result of the pain, fatigue, and lack of endurance. The examiner noted that there was objective evidence of pain when the left knee is used in non-weight bearing, but did not describe at which point the objective evidence of pain began. The examiner noted that no passive range of motion testing of the left knee had been conducted, stating that it could not “be performed or is not medically appropriate,” but did not explain why this was the case. The Veteran was last afforded a VA examination for his cervical spine disability in August 2019. Initial range of motion testing revealed abnormal range of motion of the cervical spine. The Veteran reported flare-ups of his cervical spine disability which were characterized by pain that limited his ability to turn his head, which affected his employment duties as an electrician. On examination, the VA examiner noted that the Veteran was not currently experiencing a flare-up but was able to describe in terms of range of motion the Veteran experienced during flare-ups as a result of the pain. The examiner noted that there was objective evidence of pain when the cervical spine is used in non-weight bearing, but did not describe at which point the objective evidence of pain began. The examiner noted that no passive range of motion testing of the left knee had been conducted, stating that it could not “be performed or is not medically appropriate,” but did not explain why this was the case. The Board finds that the VA examinations of record are not complaint with the holdings in Sharp and Correia. Thus, a remand for new VA examinations for the Veteran’s left knee and cervical spine disabilities is warranted. 4. Entitlement to a TDIU is remanded. A total disability rating for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgement of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.15(a). If there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16 (a). A claim for a total compensation rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In the instant case, the Veteran is service-connected for PTSD with a disability rating of 50 percent and numerous additional service-connected disabilities resulting in a combined rating of 90 percent for the entire period on appeal. The Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the outcome of the Veteran's pending claims for increased disability ratings for his cervical spine and left knee disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009) (finding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation). The determination of the TDIU will, in part, be based on whether the Veteran receives an increased disability rating for his cervical spine and left knee disabilities. Therefore, the Board cannot adjudicate the Veteran's TDIU claim until the development requested for the service connection claims is accomplished. Thus, the Board defers consideration of TDIU until further development is complete. The matters are REMANDED for the following action: 1. Obtain any pertinent, outstanding VA and/or private treatment records and associate them with the claims file. 2. The Veteran should be scheduled for VA examinations to determine the severity of his cervical spine and left knee disabilities. The Veteran's claims file must be made available to and reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the disability should be identified. The examiner must specifically express an opinion concerning whether there would be additional limitations on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. The examiner should also ensure that, consistent with 38 C.F.R. § 4.59, the VA examination report contains range of motion testing, including active, passive, weight-bearing, and non-weight bearing, including the results following repetitive motion testing and whether there is any functional loss (please describe as stated above). If any of the range of motion testing described above cannot be performed or is not medically appropriate, the examiner should explain why. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.