Citation Nr: 21063788 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-37 037 DATE: October 15, 2021 ORDER Entitlement to service connection for cluster headaches is denied. Entitlement to service connection for a lower back condition is granted. Entitlement to a 30 percent disability rating, but no higher, for posttraumatic stress disorder (PTSD) prior to September 26, 2016 is granted. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from September 26, 2016 is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for chondromalacia patella left knee with degenerative arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for chondromalacia patella right knee with degenerative arthritis is remanded. FINDINGS OF FACT 1. The Veteran's cluster headaches did not begin during active service, and are not otherwise related to an in-service injury, event, or disease. 2. The Veteran's back condition is etiologically related to service. 3. Throughout the appeal period, the Veteran's PTSD has been manifested by no worse than 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). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cluster headaches have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a lower back condition have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to a 30 percent disability rating, but no higher, for posttraumatic stress disorder (PTSD) prior to September 26, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 4. The criteria for entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from September 26, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the U.S. Army from October 1973 to October 1977 and from September 1981 to August 1997. This case comes before the Board of Veteran's Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Headaches The Veteran contends that his cluster headaches are related to his military service. Service treatment records (STRs) document that he complained of headaches. A September 1976 treatment record reported headaches and pain in his neck region. He was assessed with tension in his neck muscles due to stress. The February 1997 retirement examination, however, had a normal clinical evaluation. The examination was silent for any complaints or diagnosis of headaches. Post service treatment records also document complaints of headaches. A January 2001 private treatment note documented that he had headaches and uncontrolled blood pressure (BP). A March 2004 private treatment note documented that he was diagnosed with migraine headaches. On a March 2016 headaches disability benefits questionnaire (DBQ) submitted by the Veteran, the examiner diagnosed cluster headaches. The examiner noted that he started having headaches in June 2015. In June 2016, the Veteran was afforded a VA headaches examination. He was diagnosed with cluster headaches. He reported that his headaches began around 13 to 14 months prior. He was not sure what started his headaches. The examiner opined that the Veteran's headaches were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the medical records demonstrated that he started to have issues with headaches one year prior. Further, the Veteran reported that his condition started last year and was not able to remember if he had headaches like this in the past. She noted that STRs showed that he was once seen for tension headaches during service. She noted that there was no indication of chronicity of his condition as there was no medical records that showed treatment since that treatment in September 1976. She noted that his separation examination was negative for any complaints of diagnosis of headaches. Therefore, it was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The Board notes that the Veteran indicated that his headaches started around 2014 or 2015. The Veteran has not provided any information or medical opinion relating his headaches to his military service. Further, the Board assigns probative value to the June 2016 VA examiner's opinion. The June 2016 VA examiner provided a negative nexus opinion and addressed the Veteran's lay statements and in-service headache complaint. There is no competent and credible evidence linking the Veteran's currently diagnosed cluster headaches with service. No medical professional has rendered a nexus opinion, and in the absence of such, service connection is denied. The preponderance of the probative evidence of record weighs against the claim of service connection. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990). Lower Back The Veteran contends that his lower back condition was related to his military service. STRs are silent for any complaints, treatment, or diagnosis of a back condition. The February 1997 retirement examination had a normal clinical spine evaluation and the Veteran marked "no" for recurrent back pain. Post service treatment records document numerous complaints of back pain. An August 2015 MRI documented that he had mid and lower thoracic spondylosis, and from that point forward the Veteran regularly reported low back pain. The AOJ found that the findings of low back pain were not representative of a current disability, despite the noted pathology, and in contradiction of applicable law. Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018). No VA examination was provided with regard to the back. In a March 2017 private opinion, Dr. GS noted that he reviewed the Veteran's claims file. He noted that the Veteran recalled 200-mile road marches when he first entered service. During the marches the Veteran carried a 60 lb rucksack along with a 50 lb mortar base plate. He reported that he currently had severe back pain. Dr. GS noted that the 2015 MRI documented degenerative changes and a December 2016 VA MRI of the thoracic spine showing mild diffuse degenerative changes. The Veteran reported that ever since service he had experienced knee pain, with periodic flare-ups of limiting his motion. He used a cane and braces. Dr. GS wrote that the Veteran described low back flare-ups which were highly suggestive of a routinely altered gait. Dr. GS indicated that over years of repetitive motion, that altered gait because of the knees would have contributed to the arthritis developed in his lower back. He noted that a review of the records showed a few occasions where the Veteran's treating medical professional did note an altered gait; he commented that such times did not reflect testing during flare-ups of the knees following extended walking or prolonged exercise, implying that the flare-ups were actually worse than documented. He concluded that it was at least as likely as not that the Veteran's lower back disability was caused or aggravated beyond its normal progression by his military service; specifically, the low back problems were secondary to the service-connected knee disabilities. With a detailed rationale supported by medical evidence, the March 2017 positive nexus opinion is probative. There is also no contradictory medical opinion of record. Entitlement to service connection for a low back condition is granted. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 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 evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. 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). 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). The Veteran's PTSD is assigned a 10 percent rating under Diagnostic Code 9411, based on occupational and social impairment. 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 a moment of 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 based on social impairment. 38 C.F.R. § § 4.126. The General Rating Formula for Mental Disorders at 38 C.F.R. §§ 4.130 provides that 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 continuous medication, is rated 10 percent disabling. 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), is rated 30 percent disabling. 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, is rated 50 percent disabling. 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, is rated 70 percent disabling. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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, is rated 100 percent disabling. 38 C.F.R. § § 4.130. The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide examples of type and degree of 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 symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect occupational and social impairment, and assign an evaluation based on overall disability picture presented. However, the disability does need to cause impairment in most areas referenced at any given level. Vazquez-Claudio v. Shinseki, 713 F. 3d. 112 (Fed. Cir. 2013). In June 2016, the Veteran was afforded a VA PTSD examination. The Veteran was diagnosed with PTSD. The Veteran reported that he was married for 36 years before his wife died. He had 4 adult children with whom he had a close relationship. He indicated that he had been dating his girlfriend for 3 years and they resided together. He reported that he spent his days doing yard work and household projects. He indicated that he did not keep friends and he did not have close friends at that time. He reported that he continued to experience problems with sleeping and avoidance. He denied any recent or current depression. He indicated that he was uncomfortable in public spaces. He reported that he thought his life was going very well; however, he would like a closer relationship with his children. He denied any suicidal or homicidal ideation. The Veteran had symptoms of chronic sleep impairment and difficulty in establishing and maintaining effective work and social relationships. The examiner opined that although there was a mental condition that was formally diagnosed, but the symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. In May 2017, the Veteran was afforded VA PTSD examination. The Veteran was diagnosed with PTSD. The examiner noted that the Veteran had mild symptoms. He reported that he had a good relationship with his siblings. He indicated that his relationship with his girlfriend of 4 years was pretty good. He noted that he had a good relationship with his children except with his oldest daughter. The Veteran did not have close friends; he indicated that he was a loner. The Veteran went on dates with his girlfriend weekly and played cards with his sister weekly. He attended church weekly. He denied getting into arguments or fights with others. He denied problems with feeling uncomfortable around others. The Veteran reported that he did odd jobs, he indicated that he did a lot of construction work. The Veteran had on normal attire for the examination. His hygiene and appearance were normal. He was calm and cooperative. He was alert and oriented. His speech was normal in rate, volume, and fluency. His affect and mood were depressed. His thought process was clear, organized, and linear. His insight and judgment were good. His memory was intact. He denied any suicidal or homicidal ideation. In the examiner's opinion, the Veteran's symptoms caused an occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. A February 2018 VA treatment note documented that the Veteran had increased pain, insomnia, and stress. A March 2019 VA treatment note documented that he was satisfied with his mental health treatment. A March 2020 VA treatment note documented that the Veteran denied any significant mental health difficulties. However, he did have trouble with sleep difficulties, avoidance, and hypervigilance. Prior to September 26, 2016 The Board finds that the overall severity, frequency, and duration of the Veteran's symptoms are on par with the level of severity contemplated by a 30 percent, but no higher, prior to September 26,2016. His PTSD symptoms included sleep impairment, avoidance, and difficulty in establishing and maintaining effective work and social relationships. However, there is no showing of reduced reliability and productivity due to anxiety and panic attacks, which are more often than once a week. The Veteran's affect primarily has been congruent with maintaining friendships, and there is no showing of circumstantial or circumlocutory or stereotyped speech. Impaired memory has not been demonstrated. Given his medical history of sleep impairment, avoidance, and difficulty in establishing and maintaining effective work and social relationships, a 30 percent, but no higher, disability rating is warranted under Diagnostic Code 9411 for PTSD. From September 26, 2016 The record reflects that the Veteran overall remains able to communicate and function well; his behavior at his examination was appropriate and friendly. He was responsive and well-oriented, and he did not demonstrate any deficits of judgment or frequent panic attacks. The Veteran had no more than occasional decreases in his functional capacity due to PTSD and continued to generally function well in all areas. The Veteran only complaints were chronic sleep impairment, avoidance, and difficulty in establishing and maintaining effective work and social relationships. The May 2017 examiner noted that his symptoms caused an occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Further, the March 2020 VA treatment note documented that he denied any significant mental health difficulties. In short, the disability picture presented most closely resembles that of the 30 percent evaluation. The severity of the Veteran's PTSD rises to the level envisioned by the 30 percent rating threshold during this period, the Veteran did not demonstrate a manifestation of symptoms with the severity, frequency, and duration comparable of a 50 percent disability rating. The Veteran did not demonstrate any symptoms of 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. The record did not reflect that he had impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Therefore, the Board finds that the preponderance of evidence is against assigning a disability rating in excess of 30 percent for the Veteran's PTSD, and there are no doubts to be resolved. See 38 U.S.C. § 5.107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND VA treatment records demonstrated worsening of the Veteran's bilateral knee condition. An April 2018 VA treatment note documented that his knee gave way and he fell down the stairs. A September 2018 private treatment note documented that the Veteran had possible worsening medial meniscus pathology. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination; the most recent VA examination here took place in May 2017. The matters are REMANDED for the following action: 1. Obtain updated VA and private treatment records and associate with the claims file. 2. Schedule the Veteran for a VA knee examination to ascertain the current nature and severity of his service-connected bilateral knee condition. Describe in full all disabilities and functional impairments of the bilateral knee to include with repetitive motion and on flare-ups. 3. Thereafter, readjudicate the remanded issues. If any benefit sought remains 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 S. Baxter 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.