Citation Nr: 21063729 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 14-25 366A DATE: October 15, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, other than posttraumatic stress disorder (PTSD) is dismissed. REMANDED Entitlement to an evaluation in excess of 0 percent for patellofemoral syndrome status post arthroscopy, left knee prior to February 14, 2020 is remanded. Entitlement to an evaluation in excess of 10 percent for patellofemoral syndrome status post arthroscopy, left knee from February 14, 2020 is remanded. Entitlement to an evaluation in excess of 0 percent for patellofemoral syndrome, right knee prior to February 14, 2020 is remanded. Entitlement to an evaluation in excess of 10 percent for patellofemoral syndrome, right knee from February 14, 2020 is remanded. Entitlement to an evaluation in excess of 0 percent for bilateral plantar fasciitis with bilateral flat feet prior to February 14, 2020 is remanded. Entitlement to an evaluation in excess of 10 percent for bilateral plantar fasciitis with bilateral flat feet from February 14, 2020 is remanded. Entitlement to an evaluation in excess of 10 percent for cervical spine strain prior to February 14, 2020 is remanded. Entitlement to an evaluation in excess of 20 percent for cervical spine strain from February 14, 2020, is remanded. Entitlement to an evaluation in excess of 10 percent for degenerative disc disease of thoracolumbar spine prior to February 14, 2020 is remanded. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of thoracolumbar spine from February 14, 2020 is remanded. FINDING OF FACT The preponderance of the evidence shows that the Veteran's manifestations of any additional claimed acquired psychiatric disability are not clearly distinguishable from his service-connected PTSD. CONCLUSION OF LAW As any additional claimed acquired psychiatric disability encompasses the same symptomatology and cannot be separated from the Veteran's service-connected PTSD, the claim for service connection for an acquired psychiatric disability other than PTSD is moot. 38 U.S.C. § 7105; 38 C.F.R. §§ 4.14, 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 2009 to March 2012. In January 2020, and in pertinent part, the Board remanded the appeal for evidentiary development. During development, a June 2020 rating decision granted entitlement to service connection for PTSD (50 percent, effective February 14, 2020) and increased the evaluations for the above listed orthopedic-type disabilities, resulting in staged ratings that remain on appeal. The appeal has since been returned to the Board for further consideration. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). For the showing of chronic disease in-service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in-service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for an acquired psychiatric disability, other than posttraumatic stress disorder (PTSD) As noted above, a June 2020 rating decision granted entitlement to service connection for PTSD as 50 percent disabling, effective February 14, 2020. The Board observes that a June 2021 rating decision later increased PTSD to 70 percent disabling, effective September 13, 2020. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 App. 1 (2009). Additionally, when it is not possible to separate the effects of service-connected and nonservice-connected disabilities, such effects should be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181 (1998). Finally, it is important to recognize that the Veteran may not be entitled to be doubly compensated for the same disability. The evaluation of the same disability under various diagnoses is to be avoided, as is the evaluation of the same manifestation under different diagnoses. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). Based upon a review of the record, and absent evidence to the contrary, the Board finds that the Veteran's service-connected PTSD and any additional claimed acquired psychiatric disorder other than PTSD are manifested by overlapping symptomatology. Notably, VA psychiatric examinations of record suggest that the Veteran's diagnosis continues to be PTSD. These examiners have repeatedly found that it is not possible to differentiate what symptoms are attributable to any other psychiatric diagnosis. The Board finds that the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD is moot because the Veteran has already been service-connected for PTSD, which completely encompasses the manifestations of his currently claimed acquired psychiatric disorder and all psychiatric manifestations. Absent evidence of a mental disability with distinct symptomatology from the already service-connected PTSD, consideration of service connection for an acquired psychiatric disorder other than PTSD is not warranted. Such an action would amount to impermissible pyramiding, and VA is prohibited from awarding disability benefits for two separate diagnoses that produce the same manifestations of a disability. 38 C.F.R. § 4.14 Therefore, the Board finds that the claim of entitlement to service connection for an acquired psychiatric disability other than PTSD must be dismissed as moot because service connection has already been established for PTSD, and the Veteran is rated upon the psychiatric symptomatology shown, which cannot be distinguished between any possible additional psychiatric diagnoses. 38 U.S.C. § 7105. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 0 percent for patellofemoral syndrome status post arthroscopy, left knee prior to February 14, 2020 is remanded. 2. Entitlement to an evaluation in excess of 10 percent for patellofemoral syndrome status post arthroscopy, left knee from February 14, 2020 is remanded. 3. Entitlement to an evaluation in excess of 0 percent for patellofemoral syndrome, right knee prior to February 14, 2020 is remanded. 4. Entitlement to an evaluation in excess of 10 percent for patellofemoral syndrome, right knee from February 14, 2020 is remanded. 5. Entitlement to an evaluation in excess of 0 percent for bilateral plantar fasciitis with bilateral flat feet prior to February 14, 2020 is remanded. 6. Entitlement to an evaluation in excess of 10 percent for bilateral plantar fasciitis with bilateral flat feet from February 14, 2020 is remanded. 7. Entitlement to an evaluation in excess of 10 percent for cervical spine strain prior to February 14, 2020 is remanded. 8. Entitlement to an evaluation in excess of 20 percent for cervical spine strain from February 14, 2020, is remanded. 9. Entitlement to an evaluation in excess of 10 percent for degenerative disc disease of thoracolumbar spine prior to February 14, 2020 is remanded. 10. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of thoracolumbar spine from February 14, 2020 is remanded. Regrettably, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. Pursuant to the Board's January 2020 remand, the Veteran received several VA orthopedic type examinations in June 2020. The Board notes that as a result of these examinations, the Veteran's disabilities on appeal were found to have worsened, resulting in the staged ratings herein. A Supplemental Statement of the Case (SSOC) was later provided in August 2020. However, since that time, a substantial amount of additional VA and other medical records have been added to the claims file. This includes pertinent treatment records for most of the issues on appeal, including complaints of joint pain. Significantly, this new and relevant evidence, added to the record since the most recent SSOC in August 2020, was not reviewed by the Agency of Original Jurisdiction (AOJ). In this instance, the AOJ needs to review the issues and, as appropriate, provide a SSOC before any claim for an increased rating can be considered by the Board. The matters are REMANDED for the following action: 1. Following any additional development deemed appropriate (to include additional VA medical examinations and/or opinions) based on the new evidence added to the record since issuance of the August 2020 SSOC, readjudicate the issues on appeal. In doing so, consider all relevant evidence added to the claims file since the most recent August 2020 SSOC, to include all VA treatment records relevant to the Veteran's claims and the any VA examinations of record. If any benefit sought is not granted, then the Veteran should be furnished with another SSOC, with copy to the Veteran's representative, and afforded an opportunity to respond before the record is returned to the Board for further review. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.