Citation Nr: 21004811 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 12-16 691A DATE: January 28, 2021 ORDER Entitlement to an earlier effective date of March 23, 2015, for the award of a separate rating for shin splints of the left lower extremity, on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, is granted. Entitlement to an earlier effective date of March 23, 2015, for the award of a separate rating for shin splints of the right lower extremity, on the basis of CUE pursuant to 38 C.F.R. § 3.105, is granted. Prior to July 15, 2019, entitlement to an initial rating of 70 percent for posttraumatic stress disorder (PTSD) with depressive disorder and alcohol abuse is granted. Since July 15, 2019, entitlement to an initial rating in excess of 70 percent for PTSD is denied. REMANDED Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, is remanded. Entitlement to a rating in excess of 10 percent for Osgood Schlatter disease with degenerative arthritis and patellofemoral pain syndrome of the left knee is remanded. Entitlement to a rating in excess of 10 percent for Osgood Schlatter disease with degenerative arthritis and patellofemoral pain syndrome of the right knee is remanded. Entitlement to a compensable rating for shin splints of the left lower extremity is remanded. Entitlement to a compensable rating for shin splints of the right lower extremity is remanded. Entitlement to a finding of total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An application for service connection of Osgood Schlatter disease, determined to include shin splints, was received by VA on March 23, 2015. There were no prior unadjudicated claims. 2. During the entire period on appeal, the Veteran’s PTSD with depressive disorder and alcohol abuse is manifested by no worse than social and occupational impairment in most areas with symptoms such as depressed mood, anxiety, panic attacks, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, suicidal ideation, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work-like setting; total occupational and social impairment has not been shown. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 23, 2015, for the award of a separate noncompensable rating for shin splints of the left lower extremity are met. 38 U.S.C. §§ 5109A, 5110; 38 C.F.R. §§ 3.104, 3.105(a), 3.400. 2. The criteria for an effective date of March 23, 2015, for the award of a separate noncompensable rating for shin splints of the right lower extremity are met. 38 U.S.C. §§ 5109A, 5110; 38 C.F.R. §§ 3.104, 3.105(a), 3.400. 3. Prior to July 15, 2019, the criteria for an initial rating of 70 percent, but no higher, for PTSD with depressive disorder and alcohol abuse are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 4. Since July 15, 2019, the criteria for an initial rating in excess of 70 percent for PTSD with depressive disorder and alcohol abuse are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1989 to August 1992. These matters come to the Board of Veterans’ Appeals (Board) on appeal from August 2010, December 2010, and November 2018 rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Board also notes that additional VA medical treatment records were associated with the claims file after the May 2020 Supplemental Statement of the Case which were not previously considered by the Agency of Original Jurisdiction (AOJ) and for which the Veteran did not submit a waiver of initial consideration by the AOJ. However, as these records are duplicative regarding the Veteran’s initial increased rating claim for PTSD with depressive disorder and alcohol abuse, the Board finds no prejudice to the Veteran in considering any new evidence not previously considered by the AOJ. When, as here, evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). Duty to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These appeals arise from the Veteran’s disagreement with the initial rating assigned following the grant of service connection for PTSD with depressive disorder and alcohol abuse and the assigned effective date for the awards of service connection for separate noncompensable ratings for shin splints of the bilateral lower extremities. Where an underlying claim for service connection has been granted and there is disagreement as to “downstream” questions, the claim has been substantiated and there is no need to provide additional notice or address prejudice from absent notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). No additional discussion of the duty to notify is therefore required. The RO associated the Veteran’s service and VA outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have identified any other shortcomings in fulfilling VA’s duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Earlier Effective Date The Veteran contends that he is entitled to an effective date earlier than August 26, 2018, for the awards separate noncompensable ratings for shin splints of the left and right lower extremities. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”  See 38 U.S.C. § 5110(a).   Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form.  79 Fed. Reg. 57660 (Sept. 25, 2014).  As the claim in question was earlier than this, the amended provisions do not apply.   Under the law prior to the amendment, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.  38 C.F.R. § 3.1(p).  An informal claim was any communication or action indicating an intent to apply for one or more benefits.  38 C.F.R. § 3.155(a).  Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims—formal and informal—for benefits and was required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In analyzing the record, and in the interest of viewing the evidence in a light most favorable to the Veteran, the Board finds that the appropriate date for the Veteran’s claim is March 23, 2015, the receipt date of the Veteran’s application of service connection for Osgood Schlatter disease. The Veteran submitted a claim of service connection for Osgood Schlatter disease in an Application for Compensation (VA 21-526), which was received by the RO on March 23, 2015. Service connection for Osgood Schlatter disease with shin splints and patellofemoral pain syndrome of the left and right knee was then granted by the RO in a July 2015 rating decision, and assigned an initial rating of 10 percent, effective March 23, 2015, the date of receipt of the claim of service connection. The Veteran did not file a timely Notice of Disagreement challenging this determination or otherwise express disagreement with that determination within one year of the decision, nor did he submit new and material evidence within one year of its promulgation. The July 2015 decision therefore became final. Thereafter, the Veteran submitted an increased rating claim for his service-connected bilateral knee disability, to include traumatic or degenerative arthritis, tendinitis, shin splints, and patellofemoral pain syndrome in a Supplemental Claim (VA 21-526b), received by the RO on August 26, 2018. The RO, in a November 2018 rating decision, confirmed and continued the assigned 10 percent ratings for each knee. The Veteran submitted a timely Notice of Disagreement challenging this determination in December 2018. In a February 2019 rating decision, the RO found CUE in the November 2018 rating decision in the failure to separate shin splints from the Veteran’s knee disabilities and assign a separate evaluation for the disability. Consequently, the RO noted that service connection for shin splints of the bilateral lower extremities had already been established and assigned a noncompensable evaluation from August 26, 2018, the date of receipt of the Supplemental Claim. No prior unadjudicated claims were outstanding. The RO committed an error of law in its misapplication of 38 C.F.R. § 3.400. The applicable law and regulations concerning effective dates state that the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110(a). The evidence of record reflects that the Veteran submitted his original claim of service connection on March 23, 2015. The July 2015 rating decision that awarded service connection for the Veteran’s bilateral knee disabilities with a 10 percent rating, effective March 23, 2015, reflected the inclusion of shin splints, as acknowledged by the RO. The RO also acknowledged that the shin splints warranted separate evaluation. Therefore, applying the stated logic and conclusions of the RO, the Board finds that the proper effective date for the awards of separate noncompensable ratings for shin splints of the left and right lower extremities is March 23, 2015, the receipt date of the Veteran’s application of service connection for Osgood Schlatter disease, which included the shin splints. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.    When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. 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 on the basis of social impairment. 38 C.F.R. § 4.126. In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).    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).  If the evidence for and against a claim is in equipoise, the claim will be granted.  38 C.F.R. § 4.3.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  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 evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.    The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).    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).    Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements.  Id.  Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period.  Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).    The Veteran’s PTSD with depressive disorder and alcohol abuse is rated under Diagnostic Code 9411 and evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.30. The General Rating Formula for Mental Disorders provides that a 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where 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 work like setting); and inability to establish and maintain effective relationships. Id. The Federal Circuit has found that § 4.130 requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for a 70 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). A 100 percent rating 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; or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, 4.30. Ratings are assigned according to the manifestation 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran’s condition of similar type and degree that affect the level of occupational and social impairment. Id. The Veteran contends that he is entitled to an initial rating in excess of 50 percent prior to July 15, 2019, and a rating in excess of 70 percent thereafter for his service-connected PTSD with depressive disorder and alcohol abuse; he is rated as 50 percent disabling, effective June 3, 2009, and 70 percent disabling, effective July 15, 2019. The evidence of record reflects that the Veteran was afforded a VA examination in November 2010. The examination report referenced the Veteran’s diagnosis of dysthymic disorder and PTSD-related symptoms. The Veteran endorsed frequent and moderate insomnia, frequent and moderate fatigue, occasional and moderate combat-related nightmares, frequent and moderate daytime trauma reexperiencing, frequent and moderate anxiety and worrying, infrequent and mild to moderate panic symptoms, frequent and moderate irritability, anger, arguing with others, social isolation, and depressed mood. The Veteran further reported occasional suicidal thoughts without intent or plans, frequent and moderate decreased motivation, and occasional and moderate impaired concentration and short-term memory. Upon mental status examination, the Veteran was fully oriented and displayed fatigued and tense psychomotor activity, spontaneous, clear, and coherent speech, cooperative and attentive attitude, constructed affect, and anxious and depressed mood. The VA examiner further reported that the Veteran exhibited unremarkable thought process, ruminations, normal remote memory, mildly impaired recent memory, no delusions or hallucinations, an understanding of the outcome of his behavior, and above average intelligence. The VA examiner stated that the Veteran did not display homicidal or suicidal thoughts, had fair impulse control, endorsed episodes of violence, and was able to maintain minimum personal hygiene with no problems with activities of daily living. The VA examiner indicated that the Veteran’s PTSD had been associated with significant emotional distress, relational conflict, and social avoidance. He further stated that depression has contributed significantly to overall problems in functioning, and that alcohol abuse appears to have been a form of escape coping. The VA examiner diagnosed the Veteran with combat-related PTSD, a related depressive disorder, and episodic alcohol abuse. VA treatment records dated January 2011 indicate that the Veteran endorsed sleep disturbance, nightmares, fair appetite, “up and down” energy, depressed mood, anxiety, startle response, and intrusive thoughts. Treatment records note that the Veteran had never been hospitalized in a psychiatric hospital. In March 2011, the Veteran reported that his prescribed Wellbutrin and trazodone was effective in alleviating his symptoms, and that others noticed he was doing better. During this period mental status examinations, the Veteran appeared alert, oriented, cooperative, coherent, and pleasant, and displayed appropriate affect, anxious mood, normal speech, protracted to goal directed thought process, fair attention and concentration, intact memory, fair fund of knowledge, fair to intact judgment and insight, and no evidence of involuntary movements, mannerisms, posturing, delusions, hallucinations, or psychosis. The record subsequently reflects that the Veteran was admitted to CCH on June 30, 2011 for substance-induced psychosis. The Veteran endorsed visual and auditory hallucinations when he took bath salts, and then proceeded to take his prescribed trazadone and Wellbutrin in a suicidal attempt. Thereafter, he was transferred and involuntarily admitted to the HC from July 2, 2011 to July 13, 2011, and was assessed with severe, recurrent major depressive disorder, chronic PTSD, and substance-induced psychosis. Upon admission, he appeared oriented and cooperative, but with depressed mood, blunted affect, paranoid delusions, intact sensorium, poor insight and judgment, and a current lethal plan and intent to commit suicide. On discharge, the Veteran was not suicidal or homicidal, or an imminent threat to himself or others, and was future oriented. Thereafter, from July 14, 2011 to August 3, 2011, the Veteran was admitted to a VA facility for alcohol dependence. The Veteran stated that he sought to “get clean and sober.” Subsequent VA treatment records dated May 2011 to August 2011 indicate that upon mental status examinations, the Veteran generally appeared alert and oriented, and exhibited good eye contact, no odd mannerism or posturing, dysphoric and anxious mood and affect, normal speech, goal directed thought process, no evidence of psychosis, normal psychomotor activity, intact memory and cognition, no suicidal or homicidal ideations, fair fund of knowledge, and “ok” judgment and insight. The Board notes that in September 2011, the Veteran appeared alert and oriented, but with a coherent, nonrelevant, and defensive presentation, moderately to severely dysphoric mood, flat affect, and moderate psychomotor retardation. He further displayed no suicidal or homicidal ideation, or hallucinations or delusions, clouded memory for recent and remote events, adequate immediate recall, clinically impaired social judgment, labored insight, and questionable motivation. Later that same month, on mental status examination, the Veteran appeared cooperative and alert with good eye contact, and exhibited appropriate affect, dysphoric mood, normal speech, normal psychomotor activity, goal directed, reality-based, and organized thought process, intact memory and cognition, intact judgment and insight, and no delusions, hallucinations, or suicidal or homicidal ideations. Thereafter, the Veteran was afforded a subsequent VA examination in January 2012. The Veteran reported that while he spent time with his family, he spent too much time in isolation and did not do much outside of work and going home. The Veteran noted that he struggled with his mood and did not like being around crowds. He further reported that he continued to have bothersome thoughts and recollections, and periodic adrenaline-type of reactions and symptoms, consistent with physiological reactivity. The Veteran also stated that he had recurring nightmares and dreams at least a couple of times a week, had arousal difficulties, and felt withdrawn, overwhelmed, very “jumpy” and anxious with noise, people or crowds, was very irritable periodically, was unable to control his mood, and had fair concentration. The VA examiner remarked that the Veteran’s work history was fairly good “considering everything he has struggled with.” The Veteran noted that he felt that work was good for him in reference to keeping him busy and occupied. On mental status examination, the Veteran was alert and oriented, displayed a slightly constricted but generally euthymic affect, had good eye contact, had normal speech, and had no unusual mannerisms or tics or active or passive suicidal or homicidal thoughts. The Veteran further exhibited clear, coherent, and goal directed thought processes, good insight and judgment, and no evidence of any obsessions, compulsions, delusions, hallucinations, or any major concentration or memory disturbances. The VA examiner assessed the Veteran with PTSD, recurrent major depressive disorder, in partial remission, and alcohol dependence and substance abuse, in partial remission. VA treatment records dated April 2012 indicate that the Veteran declined a suggestion to consider admission to a VA PTSD residential unit and was avoidant of a second residential rehabilitation. Upon mental status examination, the Veteran displayed monotonous communication, absent insight, flat affect, and logic and reasoning fraught with rationalization. He further showed impaired alertness, adequate orientation and reality testing, cautious, defensive and avoidant presentation, a dysphoric mood, blunted affect, mild psychomotor retardation, uneven quality of memory, poor judgment, and indifferent and apathetic motivation, but did not show suicidal or homicidal ideation, or hallucinations or delusional activity. Thereafter, the record reflects that the Veteran participated in group therapy sessions for mental health and substance abuse from May 2012 to October 2012. VA psychiatry records dated September 2012 to September 2013 reflect that the Veteran stated that he was “good” and “ok.” On mental status examination, the Veteran appeared cooperative and alert with good eye contact, and displayed an euthymic mood, appropriate affect, normal speech, normal psychomotor activity, goal directed, reality-based, and organized thought process, intact memory, cognition, judgment, and insight, and no delusions, hallucinations, or suicidal or homicidal ideations. Subsequent VA treatment records dated September 2013, January 2014, March 2014, June 2014 generally reflect that the Veteran appeared cooperative and alert with good eye contact, and displayed an euthymic mood, appropriate affect, no involuntary movements, normal speech, normal psychomotor activity, goal directed, reality-based and organized thought process, intact memory, cognition, judgment, insight, and motivation, and no delusions, hallucinations, or suicidal or homicidal ideations. Thereafter, from May 2015 to December 2020, the Veteran continued to receive outpatient mental health treatment on a follow-up basis. He endorsed intrusive thoughts, nightmares, desire to avoid, negative view of self and the world, anger, guilt, fear, emotional detachment, hypervigilance, isolation, and difficulty regulating his mood. During this period, it was routinely reported that there was no change in mental health status or recent psychiatric hospitalizations. Mental status examinations indicated that the Veteran generally appeared to be alert, have appropriate functioning as to activities of daily living, was cooperative and interactive, and displayed an anxious and sad to euthymic mood, constricted and appropriate affect, intact memory and cognition, no disturbances of thought process or content, intact expressive and receptive communication, and fair insight and judgment. During this period, VA records indicate that the Veteran also participated in group psychotherapy sessions. The record reflects that the Veteran was afforded a VA examination in July 2019. The examination report referenced the Veteran’s diagnoses of PTSD, moderate, recurrent major depressive disorder, and alcohol use disorder, in sustained remission. The Veteran noted that he worked in data entry since March 2019 and left his position as a nurse. He stated that he left his job in nursing as he became easily agitated in the workplace and dealing with typical social interactions. Nevertheless, in his current job, he reported that he becomes easily frustrated with others and is suspicious of his co-workers. The Veteran endorsed symptoms of difficulty with sleep, nightmares, difficulties with concentration, impaired short-term memory, irritability, loss of motivation, interest and pleasure, feelings of hopelessness, social withdrawal, occasional suicidal ideation, depressed mood, anxiety, excessive worry, extreme hypervigilance, over-protectiveness with his family, and panic attacks. Upon mental status examination, the Veteran appeared cooperative and oriented, and displayed good eye contact, unremarkable motor behavior, fluent sleep, no notable problems with expressive or receptive language, logical, concrete, and goal directed thought processes, and a dysthymic mood. He further exhibited clear sensorium, fair attention and concentration, impairment of short-term memory, intact long-term memory, adequate intellectual functioning, and good insight and judgment. The Veteran denied currently experiencing suicidal or homicidal ideations, and the VA examiner noted no evidence of a thought disorder. The VA examiner indicated that the Veteran had symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, and suicidal ideation. The VA examiner opined that the Veteran has an 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. For the entire appellate period, based on the Veteran’s overall symptomatology and the resulting impairment stemming therefrom, the Board finds that the evidence shows that his disability picture more nearly approximates the level of severity contemplated by a 70 percent rating for PTSD with depressive disorder and alcohol abuse, which contemplates impairment in most areas. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. The Veteran has exhibited social and occupational impairment in most areas with symptoms such as depressed mood, anxiety, panic attacks, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, suicidal ideation, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work-like setting. While the severity of the Veteran’s major depression with PTSD rises to the level envisioned by the 70 percent rating threshold, the Veteran does not display a manifestation of symptoms with the severity, frequency, and duration comparable of a 100 percent disability rating. The November 2010, January 2012, and July 2019 VA examiners did not note that the Veteran’s symptoms cause total occupational and social impairment. Statements made by the Veteran also collectively did not note 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, or memory loss for names of close relatives, own occupation, or own name. To the extent that the Veteran and his representative, in August 2011, raised entitlement to a temporary 100 percent rating regarding hospitalizations for mental health and substance abuse issues, the Veteran was not an inpatient at a VA hospital or mental health facility or any private facility at VA’s expense for the requisite duration in excess of 21 continuous days. As discussed above, upon the Veteran’s discharge from the HC on July 13, 2011, the Veteran’s mood stabilized, was not suicidal or homicidal, and was deemed not to be an imminent danger to himself or others. It was further reported that the Veteran was future oriented, committed to life affirming strategies, was able to name positive coping skills and support, and recognized the negative consequence of substance abuse and medication noncompliance. In other words, the need for hospitalization ended. Thereafter, the Veteran sought sobriety and to “get clean” upon his voluntary admission at a VA hospital the following day. VA records indicated that it was a substance abuse admission. The Veteran was admitted to CCH and transferred to the HC due to a suicide attempt, while the VA hospital admission was for the distinct purpose of alcohol and substance abuse. While substance abuse is related to PTSD with depression, the VA detox admission was separate and distinct from the private psychiatric treatment admission. His psychiatric crisis ended, and the Veteran then independently sought new treatment for a separate problem he identified. The Board is unable to combine the total inpatient admission days to exceed the required threshold. Therefore, the provisions of 38 C.F.R. § 4.29 are not applicable here. Therefore, an increased 70 percent rating for PTSD is warranted prior to July 15, 2019, but no higher rating is warranted at any time during the appellate period. REASONS FOR REMAND Further development is required in connection with the claims of service connection for a sleep disorder, to include obstructive sleep apnea; and increased ratings for service-connected Osgood Schlatter disease with degenerative arthritis and patellofemoral pain syndrome of the bilateral knees, and service-connected bilateral shin splints. Through his representative, the Veteran has submitted medical literature indicating a potential link between obstructive sleep apnea and gastroesophageal reflux disease (GERD). The Veteran is service connected for GERD with Barrett’s esophagus and status post cholecystectomy. Remand is required for a VA medical opinion to consider the facts of the Veteran’s individual case against the studies and averages cited in the submitted literature. Further, the July 2018 VA examiner applied an incorrect standard to the question of a nexus between PTSD and sleep apnea, apparently requiring a showing that PTSD was the major cause, when it is only required that there be contribution in some way. Concerning the Veteran’s Osgood Schlatter disease with degenerative arthritis and patellofemoral pain syndrome of the knees, if VA provides an examination that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded a VA examination in November 2018. The examination, however, does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Veteran and his representative assert that although the VA examiner noted that the Veteran experienced flare-ups of knee symptoms, the examiner did not offer an opinion as to the functional limitation and or additional loss of range of motion the Veteran experienced during such flare-ups. Thus, the examination is inadequate, and the Board must remand the claim for a new examination to determine the current nature and severity of the Veteran’s service-connected bilateral knee disabilities. Regarding the service-connected shin splints, reports from the Veteran indicate that his symptoms have worsened. The Veteran was last afforded a VA examination in November 2018. The VA examiner indicated that the Veteran had bilateral shin splints (medial tibial stress syndrome), but that it has resolved. In March 2019, the Veteran reported that his shin splints are painful, and that he sought alternative employment due to his shin splints. He also noted that it prevents him from enjoying activities with his family, interferes with work, his general enjoyment of life, and his sleep. In light of the time that has passed since his last VA examination and reports of the Veteran’s worsening state, the Board finds that a new VA examination is needed to assess the current severity of the Veteran’s bilateral shin splints in order for the Board to make a fully informed decision. Additionally, the above grant of earlier effective date for shin splints may impact assignment of the current rating. The Board further defers decision on the TDIU claim as intertwined with the remanded service connection and increased ratings claims. Further, a formal application for TDIU, on a VA Form 21-8940, should be requested to ensure that all factors for consideration in such a claim have been addressed. Updated private and VA treatment records should be requested on remand. 38 U.S.C. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Contact the Veteran and request properly executed, separate VA Form 21-4142’s, Authorization and Consent to Release Information to the Department of Veterans Affairs, for any private care providers who have treated him for his shin splints and knee disabilities. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Contact the Veteran and request a properly executed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 3. Schedule the Veteran for a VA examination to ascertain the current nature and severity of his service-connected Osgood Schlatter disease with degenerative arthritis and patellofemoral pain syndrome of the knees. The VA examiner should address any additional functional impairment or loss during repeated use or flare-ups. If the examiner cannot report the degree of additional range of motion loss during a flare-up or repeated use, the VA examiner must explain why it is not feasible to render such an opinion. 4. Schedule the Veteran for a VA examination to ascertain the current nature and severity of his service-connected bilateral shin splints. 5. Obtain an addendum opinion regarding the current nature and etiology of the claimed sleep disorder, to include obstructive sleep apnea; the claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether it is at least as likely as not a currently diagnosed sleep disorder, if any, was caused or aggravated by service, to include as due to service-connected GERD with Barrett’s esophagus. The role, if any of PTSD with depression must also be discussed in causing or aggravating sleep apnea must be discussed. Is it at least as likely as not that PTSD has caused or aggravated sleep apnea to any degree? A full and complete rationale is required for all opinions expressed. 6. Then, readjudicate the remanded issues. If the benefits sought remain denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, 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.