Citation Nr: 21005100 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 07-37 883A DATE: January 29, 2021 ORDER Initial disability ratings in excess of 30 percent prior to October 3, 2012, and in excess of 70 percent as of October 3, 2012, for posttraumatic stress disorder (PTSD) are denied. REMANDED Entitlement to a disability rating in excess of 10 percent for residuals, status post meniscectomy right knee following the temporary total evaluation because of treatment for a service-connected condition requiring convalescence right knee is remanded. FINDINGS OF FACT 1. For the period from November 10, 2004 through October 2, 2012, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. Beginning October 3, 2012, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. For the period from November 10, 2004 through October 2, 2012, the criteria for a disability rating in excess of 30 percent for PTSD were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. Beginning October 3, 2012, the criteria for a disability rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 2001 to November 2004 with service in Iraq from November 2003 to February 2004. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2012 rating decision, the Veteran was awarded service connection for PTSD and assigned a 30 percent disability rating, effective November 10, 2004. In a May 2013 rating decision, the RO increased the Veteran’s disability rating to 70 percent, effective October 3, 2012. In a November 2017 rating decision, the Veteran was awarded a temporary total rating for convalescence from surgery on his right knee effective September 27, 2017, and was assigned a 10 percent rating following the convalescent period on November 1, 2017. The Veteran filed a notice of disagreement with the 10 percent rating following the temporary total rating. Increased rating – PTSD The Veteran contends that he is entitled to higher disability ratings for his service-connected PTSD. He was initially assigned a 30 percent rating for service-connected PTSD, effective November 10, 2004. His rating was increased to 70 percent, effective October 3, 2012. PTSD is rated under Diagnostic Code 9411, which is rated under the General Formula for Mental Disorders (General Formula). Under the General Formula, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages.  Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).  A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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. Rating for the Period from November 10, 2004 through October 2, 2012 VA medical records show that the Veteran was evaluated in September 2005. Alert, euthymic with crying episodes, speaking in relevant and coherent manner. Oriented to place, person, and time. Memory with no gross deficit in relating to remote and recent events. Concentration and attention span not disturbed. Insight and judgment not damaged. Treatment records from the Vet Center reflect treatment from September 2006 to March 2007, when the Veteran opted not to continue with ongoing therapy and was considered stable. The Veteran reported symptoms including anxiety, isolation, anger problems, sleep disturbance, and forgetfulness. The provider noted that the Veteran was friendly and alert. He was coherent and oriented in all spheres. He reported an improvement in symptoms with medications. VA medical records show that, in September 2006, the Veteran reported a worsening of his symptoms, reporting that he was always irritable and short tempered and was unable to adjust to the civilian world. He had trouble sleeping with nightmares and was sad and hopeless at times. He was alert and oriented in all spheres. The examiner noted that the Veteran was cooperative, speech was fluent, mood was anxious, and his affect was full. He denied hallucinations and suicidal ideation. Thought processes were logical and goal directed, and judgment was fair. He was prescribed medication to treat his depression. In October 2006, the Veteran reported that he was feeling slightly better than before. The Veteran seemed to be less edgy, less anxious, and not as irritable. He was more communicative but still had hypervigilance and could not stay in crowds much. He had to check his back constantly. His concentration had improved. In January 2007, the Veteran reported that he was feeling well, working full time and attending school. He indicated that he felt anxious in crowds and that sleep was still a problem. He denied hopeless thoughts and suicidal ideation. He was alert, oriented in all spheres. His speech was fluent, mood was anxious, affect was full. He denied hallucinations and suicidal ideation. Thought process, logical, and goal directed attention and concentration was good insight and judgment was fair. In May 2007, the Veteran reported that he had reduced the amount of medication he was taking due to sexual side effects. He was alert, oriented in all spheres, and cooperative. His speech was fluent, mood was depressed, and affect was full. He denied hallucinations, and suicidal ideation. Thought process was linear and insight and judgment were fair. He reported that he felt edgy, anxious, and moody. He was always snapping at people. He was very depressed and felt fatigued. He denied suicidal thoughts and substance abuse. He was put on another medication to alleviate the sexual side effects and instructed to contact the provider if symptoms worsened. For the period from November 10, 2004 through October 2, 2012, VA and Vet Center records and the Veteran’s lay statements show that the Veteran’s service-connected PTSD was manifested by symptoms associated with a 30 percent rating including depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. He also reported symptoms that are not listed in the criteria—irritability and isolating behavior, which is similar to difficulty in establishing and maintaining effective work and social relationships. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. See 38 C.F.R. § 4.126. Significantly, in late 2006, the Veteran was provided with medication which, while causing some sexual dysfunction, did alleviate his psychiatric symptoms, according to his reports. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 30 percent rating for the period from November 10, 2004 through October 2, 2012. The Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. Mental status examinations in VA and private treatment records indicate that the Veteran was alert, oriented in all spheres. Thought process, logical, and goal directed attention and concentration was good insight and judgment was fair. The evidence overall does not demonstrate the level of impairment associated with a 50 percent rating. As noted above, the Veteran’s symptoms were either contemplated by or more consistent with a 30 percent rating. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 50 percent rating for the period from November 10, 2004 through October 2, 2012. The criteria for a 50 percent or higher rating are not met and the appeal must be denied. Rating beginning October 3, 2012 As noted above, the Veteran’s PTSD was rated at 70 percent beginning October 3, 2012. The Veteran was provided with a VA examination in October 3, 2012. The Veteran reported that he was close with his parents. He had a small circle of friends and had trouble trusting new people. He was working as a contractor. Symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, and difficulty in establishing and maintaining effective work and social relationships and in adapting to stressful circumstances including work or work-like setting. PTSD symptoms included a markedly diminished interest or participation in significant activities, feeling of detachment or estrangement from others, restricted range of affect, sense of a foreshortened future, difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. The Veteran was provided with another VA examination in April 2014. The Veteran continued to maintain contact with his parents who lived in New Jersey. Socially, he noted that he attends church but spends most of his time working. The Veteran worked as a construction surveillance technician and had been working there for approximately eight years. He worked 40 hours a week. Symptoms included depressed mood, anxiety, suspiciousness, mild memory loss, such as forgetting names, directions or recent events, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. PTSD symptoms included recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event, persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance, and problems with concentration. The Veteran was provided with a VA examination in July 2017. The Veteran had been married for the prior three years. He reported having a good relationship with his wife, as well as her two sons from her previous marriage. While the Veteran had good relationships with his family members, he noted that he has distanced himself from them in recent years. He maintained friendships with a few people. He had worked as a contractor for the Department of State for the prior nine years. Symptoms included 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 event, 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. Symptoms attributed specifically to PTSD include persistent and exaggerated negative beliefs or expectations about oneself, others, or the world, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior and angry outbursts, hyper-vigilance, exaggerated startle response, problems with concentration, and sleep disturbance. All of these VA examiners opined that the Veteran’s service-connected PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Beginning October 3, 2012, VA and private treatment records, the VA examinations noted above, and the Veteran’s lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating including difficulty in adapting to stressful circumstances. The Veteran also had symptoms specific to PTSD which were similar in severity to those listed in the criteria for a 70 percent rating, including irritable behavior and angry outbursts, hyper-vigilance, exaggerated startle response. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms shown since October 3, 2012 more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Significantly, none of the examiners found that the Veteran exhibited symptoms listed in the 100 percent disability rating. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. He was able to maintain ongoing relationships and was working throughout the appeals period. Significantly, the VA examiners opined that the Veteran’s service-connected PTSD resulted in occupational and social impairment commensurate with a 70 percent rating. As such, the evidence does not support a finding that the Veteran had total occupational and social impairment. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating for the period beginning October 3, 2012. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. REASONS FOR REMAND Rating – Right Knee Disability The Veteran has contended that his service-connected right knee disability warrants a rating in excess of his 10 percent rating. As an initial matter, there are records that need to be added to the Veteran’s claims file as they may be pertinent to his claim. The Veteran underwent arthroscopic surgery on his right knee in September 2017 and was assigned a temporary total rating based on surgery requiring convalescence. His rating was returned to the previously assigned 10 percent as of November 1, 2017. VA medical records show that records reflecting non-VA consultations dated August 30, 2017 and October 3, 2017 were scanned into the Veteran’s online medical file but are not viewable. As these records are may provide evidence pertinent to the Veteran’s claim, they should be added to the record. The most recent VA examination provided to the Veteran that included an assessment of his right knee was conducted in January 2019. This examination is inadequate for rating purposes, for the following reasons. The purpose of this examination was to assess the Veteran’s left knee disability; as such, the examination report does not include the Veteran’s reports of symptoms regarding his service-connected right knee. In addition, the examiner noted that the Veteran had pain that caused functional loss in his right knee but did not identify the functional loss. On remand, the Veteran should be provided with another VA examination to determine the severity of his right knee disability. The examiner must address and identify any functional loss caused by pain in the right knee, taking into consideration the Veteran’s reports of loss of function. The matters are REMANDED for the following action: 1. Associate copies of consultation reports dated August 30, 2017 and October 3, 2017 from non-VA medical providers scanned into the VISTA Imaging system with the Veteran’s claims folder. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In addition, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the (Continued on the next page)   record (additional facts are required), or the examiner (does not have the knowledge or training). J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Harrigan Smith 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.