Citation Nr: 21064574 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-40 945 DATE: October 20, 2021 ORDER Prior to February 10, 2016, a rating greater than 30 percent for posttraumatic stress disorder (PTSD) with generalized anxiety disorder and major depressive disorder ("PTSD") is denied. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for chest pains radiating to left arm is remanded. Entitlement to an initial rating greater than 10 percent for patellar chondromalacia, right knee status post lateral release with instability ("right knee instability") is remanded. Prior to February 10, 2016, entitlement to a compensable rating for patellar chondromalacia, right knee status post lateral release ("right knee chondromalacia") is remanded. After February 10, 2016, entitlement to a rating greater than 10 percent for right knee chondromalacia is remanded. Entitlement to a total disability rating based on individual employability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT Prior to February 10, 2016, the Veteran's PTSD was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent period of the inability to perform occupational tasks, due to such symptoms as chronic mood and sleep disturbances. CONCLUSION OF LAW Prior to February 10, 2016, the criteria for a rating greater than 30 percent for PTSD with generalized anxiety disorder and major depressive disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 2011 to June 2015, including foreign service. For her meritorious service, the Veteran was awarded (among other decorations) the Air Force Achievement Medal. Historically, these appeals were denied by the Board in February 2020. However, in January 2021 the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR), thereby vacating the Board's determinations and remanding the matters for further review. Increased Rating The Veteran is currently pursuing a rating greater than 30 percent for her PTSD prior to February 10, 2016. Briefly, the Board acknowledges that the Veteran is also in receipt of a 50 percent rating from February 10, 2016, to March 26, 2019, and a 70 percent rating thereafter, for her PTSD. In their January 2021 JMPR, the parties explicitly stated that the Veteran "does not intend to pursue these claims." Accordingly, these rating periods will not be considered herein, and the matter on appeal has been appropriately recharacterized. Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 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 service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). The Board further notes that the Veteran's disability was originally rated under DC 9413 as unspecified anxiety disorder. During her appeal, the classification and related DC were revised, such that DC 9411 for PTSD now applies. In adjudicating this appeal, the Board will utilize DC 9411, which reflects the Veteran's predominant disability during the period on appeal. This does not alter the criteria under which her disability will be evaluated, as the criteria for DCs 9411 and 9413 are identical. Thus, a 50 percent rating will be awarded prior to February 10, 2016, upon evidence of the following: 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; and difficulty in establishing and maintaining effective work and social relationships. In considering the frequency, severity, and duration of the Veteran's symptoms, a rating greater than 30 percent is not warranted prior to February 10, 2016. The Veteran underwent one VA examination during this time. In October 2014, her primary symptoms were identified as anxiety, panic attacks occurring weekly or less often, and chronic sleep impairment. She remained in active duty status at that time, and did not describe any occupational impairment due to her psychiatric disability. She also testified as to positive relationships with her father and a notable network of friends, with whom she enjoyed shopping and dining out. Nonetheless, the Veteran was currently seeking treatment for her chronic anxiety and sleep impairment. She also reported intermittent panic attacks, with the last one occurring in August 2013. During evaluation, the Veteran described her mood as "happy," rated as an 8 out of 10. Her appetite and energy levels were also reported to be "good," and anhedonia was denied. Feelings of helplessness, hopelessness, guilt, and worthlessness were also denied. Suicidal and homicidal ideations were unreported. Given her symptomatology, the Veteran's examiner estimated her disability picture as being productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress; or, symptoms controlled by medication. Such a disability picture is commensurate with the criteria for a lower evaluation than that currently assigned during the period on appeal. VA treatment records spanning the period on appeal do not deviate from the above disability picture to any significant degree. Collectively, these records corroborate the Veteran's history of chronic anxiety and sleep impairment, which required treatment with medication and compelled certain behavioral modifications to avoid panic attacks (such as avoiding large crowds). However, the Veteran continued to describe an active social life; denied frequent panic attacks; was actively pursuing employment options following her military separation; and denied suicidal or homicidal ideations. The claims file also contains lay testimony regarding the impact of the Veteran's symptoms on her daily functioning. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Miller v. Wilkie, 32 Vet. App. 249 (2020). Of note, a June 2019 buddy statement notes that the Veteran began drinking heavily following a 2014 in-service stressor, which was productive of a "significant decrease in [the Veteran's] mental health." Per her own March 2020 statement, the Veteran confirmed that the in-service event caused social withdrawal, excessive alcohol and other substance consumption, and hypervigilance which led to "changes in performance." In sum, the Veteran did not show such occupational and social impairment as to warrant a higher rating during the period on appeal. Prior to February 10, 2016, her primary symptoms were identified as chronic anxiety, depression, and sleep impairmentall of which are directly contemplated in the criteria for the 30 percent rating as currently assigned. Critically, the claims file is silent for such additional symptoms as impaired memory, abstract thinking, or judgment, as to warrant a higher rating in this case. In this respect, the Board acknowledges the Veteran's reports of panic attacks during the period on appeal, which require altered behaviors (specifically, avoidance of large crowds) so as to avoid triggering her symptoms. However, it is apparent that the Veteran's panic attacks are intermittent in nature, occurring far less frequently than on a weekly basis, as identified in the criteria for a higher rating under DC 9411. Moreover, the Veteran did not demonstrate difficulty in establishing and maintaining effective relationships due to her psychiatric disability. Although she has testified as to a strained relationship with her mother, she has directly attributed this to unrelated factors from her childhood. The Veteran has also described a positive relationship with her father and a significant community of friends, with whom she enjoys numerous social activities including shopping and dining out. It is apparent that, although the Veteran may undertake certain protective measure as a result of her hypervigilance, she is largely unrestricted from successful social functioning. Similarly, although she was unemployed during a portion of the period on appeal, it does not appear that she experienced such occupational deficiencies that she would be unable to maintain effective relationships thereat. Rather, the Veteran maintained the ability to communicate appropriately and effectively with her examiners during the period on appeal. At no time did she pose a threat to herself or others or report the need for assistance with the activities of daily living; instead, she typically described her mood and progress in positive terms. Thus, the Veteran was generally functioning satisfactorily during the period on appeal, with routine behavior, self-care, and conversation. At worst, the Veteran's disability picture prior to February 10, 2016, was productive of occupational and social impairment with occasional decrease in work deficiency and intermittent periods of inability to perform occupational tasks, commensurate with the criteria for a 30 percent rating, but no higher. On this basis, the appeal is denied. Briefly, the January 2021 JMPR contends that the Board did not previously consider a November 2015 VA treatment record which may contain sufficiently favorable evidence as to support a higher rating during the period on appeal: Therein Appellant reported little interest or pleasure in doing things, feeling down, depressed, or hopeless, trouble falling or staying asleep, or sleeping too much, and feeling tired or having little energy nearly every day . . . She had poor appetite or overeating more than half the days, and she was feeling bad about herself or that she was a failure or have let herself or her family down several days . . . Appellant had trouble concentrating on things more than half the days and moving or speaking so slowly that other people could have noticed. See January 2021 JMPR, p. 8. This isolated treatment record is inadequate upon which to grant the appeal. Compellingly, the majority of the Veteran's reported symptoms herenamely, chronic mood and sleep disturbances with resulting lethargy and concentration deficitsare directly and fully contemplated in the criteria for a 30 percent rating, as currently assigned. Although the Veteran reported a fluctuating appetite and diminished interest in activities, these symptoms are otherwise unreported or explicitly denied throughout the record. As per VA regulations, a rating evaluation is meant to compensate the disability picture as a whole, rather than heightened deviations from overall functioning. Put another way, this isolated treatment note does not outweigh the other evidence of record to demonstrate that the frequency, severity, and duration of the Veteran's symptoms more closely approximated those described by the 50 percent rating, or that whatever symptoms were displayed led to the higher level of occupational and social impairment as required for a 50 percent rating. Thus, despite the Veteran's competent reporting in November 2015, her testimony does not reflect her overall disability picture during the period on appeal and thus does not provide an appropriate basis upon which to award a 50 percent rating. Upon the above, the preponderance of the evidence is against the claim, there is no doubt to be resolved, and a rating greater than 30 percent for PTSD prior to February 10, 2016, is denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeals. Right Knee Chondromalacia and Right Knee Instability As noted by the parties in their JMPR, the Board's February 2020 denial of these appeals was based upon February 2016 and April 2019 VA examinations which failed to comply with the provisions of Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 39-42 (2011); and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Per the parties' request, an addendum opinion is required to ascertain whether the requested data points can be retrospectively provided. Remand of these matters also allows for a new examination to be obtained which provides a current assessment of the Veteran's disabilities in compliance with the noted cases. Back, Migraine, and Chest Pain Disorders As noted by the parties in their JMPR, the record is in controversy as to whether the Veteran intended to pursue appeals seeking service connection for back, migraine, and chest pain disabilities to the Board. See January 2021 JMPR, pgs. 2-4; see also August 2019 VA Form 9 (crossing out these matters as areas to be appealed); Hembree v. Wilkie, 33 Vet. App. 1 (2020) (mandating that a withdrawal be in writing, explicit, and unambiguous). Following the Court's Order, clarity on this matter has not been obtained. See, e.g., September 2021 representative's memorandum (not identifying these matters as questions at issue). Thus, the matters must be remanded as to allow the Veteran to clarify her intent with respect to these appeals. TDIU As noted by the parties in their JMPR, the issue of entitlement to a TDIU has been reasonably raised by the record; thus, the Board asserts jurisdiction over such an appeal at this time. See January 2021 JMPR, p. 9; Rice v. Shinseki, 22 Vet. App. 447 (2009). VA's duty to assist now mandates that the Veteran be afforded the opportunity to produce evidence in support of her appeal, including VA Forms 21-8940 and 21-4192. The matters are REMANDED for the following actions: 1. Contact the Veteran to clarify her intent to withdraw the claims seeking service connection for back, migraine, and chest pain disorders. Any requested withdrawal must be provided in writing, explicit, and unambiguous. 2. Provide the Veteran with a VA Form 21-8940 and 21-4192 and request their completion, particularly with respect to her last known employers. Allow a reasonable amount of time for response, and if a response is received, conduct all development indicated by such response, to include the provision of VA Form 21-4192 to the Veteran's last identified employers. 3. Schedule the Veteran for a VA examination to assess the current severity of her service-connected right knee chondromalacia and right knee instability. The claims folder must be provided to the examiner in conjunction with the examination. All necessary tests and studies should be conducted. The examiner must address the following: (a) Offer an assessment of all pertinent symptomatology and findings, to be reported in detail in accordance with Diagnostic Codes 5257 (instability) and 5260 (chondromalacia). In this respect, the examiner is advised that the regulations pertaining to evaluating musculoskeletal disabilities were revised in February 2021. The provisions of Correia, Sharp, and Mitchell must be fully addressed. (b) Offer retrospective assessments of the Veteran's disabilities at the time of the February 2016 AND April 2019 VA examinations, addressing the provisions of Correia, Sharp, and Mitchell. Range of motion measurements must be included for active and passive motion, and weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if they cannot provide an opinion without resorting to mere speculation, s/he must provide a complete explanation for why an opinion cannot be rendered. [CONTINUED ON NEXT PAGE] 4. Determine if additional development is required, to include referral of the issue entitlement to a TDIU on an extraschedular basis to the Director, Compensation Service for any portion of the period on appeal. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.