Citation Nr: 21068508 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-27 835 DATE: November 10, 2021 ORDER Prior to November 20, 2019, entitlement to a 70 percent rating, but no higher, for PTSD is granted. Entitlement to an earlier effective date for a 10 percent rating for right wrist ganglion cyst is granted from June 5, 2014. REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for post-traumatic changes of the left femur (claimed as a left hip disability) is remanded. Entitlement to an increased rating in excess of 10 percent for left knee muscular ligamentous strain, medial meniscal tear and ACL tear with degenerative joint disease is remanded. Entitlement to an increased rating in excess of 10 percent for muscular ligamentous strain of the right knee is remanded. Entitlement to an increased rating in excess of 10 percent for TBI is remanded. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by occupational and social impairment with deficiencies in most areas. 2. The Veteran filed a claim for an increased rating for his service-connected right wrist ganglion cyst on June 5, 2015. It was factually ascertainable in the year prior to his claim that the criteria for an increased rating were met. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 70 percent rating, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. 2. The criteria for a 10 percent rating for right wrist ganglion cyst are met from June 5, 2014. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.20, 4.21, 4.30, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Code 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 2005 to July 2006 and from July 2010 to October 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision. In a July 2019 decision, the Board dismissed the claims for increased ratings for TBI and both knee disabilities and service connection for left and right hip disabilities due to lack of an adequate substantive appeal. The Board denied a rating in excess of 10 percent for right wrist strain. The claim for an increased rating for PTSD was remanded. The Veteran appealed the July 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2011 Memorandum Decision, the Court found that the Board failed to provide an adequate statement of reasons and bases for its determination that the substantive appeals for service connection for left and right hip arthritis, entitlement to increased ratings for left and right knee disabilities, and entitlement to an increased rating for TBI were inadequate. The Court noted that the Veteran submitted a notice of disagreement regarding the effective date for an increased rating for his right wrist, and it was clear from his communications that he was not seeking an increased rating. The Court found that the Board failed to provide an adequate reasons and bases for limiting the consideration of the appeal for the right wrist to the increased rating claim The Board finds that the issues of entitlement to service connection for left and right hip arthritis, entitlement to increased ratings for left and right knee disabilities, entitlement to an increased rating for TBI, and entitlement to an earlier effective date for an increased rating for right wrist sprain with ganglion cyst are properly before the Board. The Veteran filed a timely notice of disagreement to the September 2015 rating decision which granted a 10 percent rating for TBI, continued a 10 percent rating for the service-connected left and right knee disabilities, continued a 0 percent rating for right wrist ganglion cysts, and denied service connection for right and left hip disabilities. A SOC was issued in May 2016. A substantive appeal as to all of the issues in the SOC was received in June 2016. The substantive appeal was timely filed and indicated the Veteran's intent to appeal all of the issues on the June 2016 SOC. 38 C.F.R. § 20.202, § 20.302. As the appeal was properly perfected, the issues of entitlement to increased ratings for TBI and left and right knee disabilities and service connection for left and right hip disabilities have been added to this decision. In an August 2020 decision, the Board granted a 70 percent rating for PTSD from November 20, 2019. The Board denied a rating in excess of 50 percent prior to November 20, 2019. The Veteran appealed the decision to the Court. In June 2021, the Court granted a Joint Remand vacating the portion of the decision that denied a rating in excess of 50 percent prior to November 20, 2019. The Court dismissed the appeal as to a rating in excess of 70 percent for PTSD. Increased Ratings Disability evaluations (ratings) are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for the disability is disputed, separate or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2008). In other cases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). Increased rating for PTSD prior to November 20, 2019 The Veteran contends that a 70 percent rating is warranted for PTSD prior to November 20, 2019. In a written argument dated in June 2020, his representative contends that a 70 percent rating is warranted from the date of the claim for an increased rating. The rating criteria for PTSD provide that a 50 percent rating is assigned when 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; and/or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when 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); inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is 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 and place; memory loss for names of close relatives, own occupation or name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). 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; 38 C.F.R. § 4.130. The Board concludes that he Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A March 2012 rating decision granted service connection for PTSD with a 10 percent rating. The current claim for an increased rating was received in January 2013. A May 2013 rating decision continued a 10 percent rating. A September 2014 rating decision granted a 50 percent rating from January 2013. A May 2020 rating decision granted a 70 percent rating from November 20, 2019. The Veteran was afforded a VA examination in August 2014. The Veteran reported that he was a full-time college student and was not working any part-time jobs. He lived with his brother. He reported that he had been in fist fights at a couple of bars, most recently a couple of days earlier. He believed that his PTSD was worse, with increased irritability, insomnia, depressed moods and isolation, more drinking, and less recreation and socialization. He stated that he had depressed moods but was not suicidal. The Veteran reported that he had loss of sleep and nightmares. He had dropped a class because he could not concentrate and had missed a day of drill because he did not want to go. He noted anger, bad memories, and depression. He reported that he kept to himself and did not go out much. The examiner noted that the symptoms included depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, effectively and appropriately, chronic sleep impairment, and disturbances of motivation and mood. The Veteran did not have any symptoms that were not listed. The examiner noted that the Veteran presented as downcast, with depressed mood and affect. He denied suicidal thoughts or plans, and there was no evidence of psychosis, mania, or violence. A March 2015 record reflects that the Veteran was facing charges for assault. The Veteran reported that he was using alcohol at the time of the assault charge. He indicated that he had problems with anxiety and used alcohol to sleep. An April 2015 VA treatment record noted that the Veteran reported that he was experiencing trauma symptomatology and wanted to renew his PTSD medications. His mood was anxious and affect congruent. His thought process was logical and goal directed. Insight was fair. He denied alcohol use. VA treatment records dated in June 2015 noted that the Veteran reported that he was imminently homeless. A VA mental status examination dated in August 2015 reflected that the Veteran's grooming and hygiene were good. His motor behavior was described as restless. His speech was relevant and spontaneous, and his thought processes were logical and goal-directed. The Veteran was afforded a VA examination in September 2015, which showed diagnoses of PTSD and severe alcohol use disorder. The examination noted that the level of impairment due to all of his mental health diagnoses was occupational and social impairment with deficiencies in most areas. The examiner differentiated the impairment due to the diagnoses. PTSD was determined to result in social and occupational impairment with reduced reliability and productivity. Alcohol use disorder was found to result in occupational and social impairment with deficiencies in most areas, including work, school, family relations, judgement, thinking, or mood. The Veteran reported that he was enrolled in university studies. He reported that he consumed alcohol on a nightly basis. The examination noted that the symptoms attributable to PTSD included chronic sleep impairment and difficulty in establishing and maintaining effective work and social relationships. Symptoms attributable to alcohol use disorder included impaired judgment and disturbances of motivation and mood. The examiner opined that the Veteran's responses on neuropsychological testing were invalid due to alcohol consumption. The examiner opined that the Veteran's PTSD did not cause or aggravate his alcohol use disorder. A PTSD treatment note dated in March 2016 showed that the Veteran's mood was neutral, and his affect was blunted. His thought process was logical and goal-directed. His sensorium was notable for problems with attention. He denied homicidal thoughts. A VA treatment record dated in March 2017 showed that he had an anxious mood and congruent affect. His thought processes were logical and goal-directed. He denied suicidal and homicidal thoughts. Insight was good. The Veteran was afforded a VA examination in November 2019. The examination noted occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking, and/or mood. The Veteran reported that he lived alone and did not have any friends. He reported that he previously worked as a sheriff's deputy but had quit that job about a month earlier. He denied disputes with others in the workplace. The report noted a history of an assault on a female worker in a detox facility in 2015. The examiner indicated that a diagnosis of alcohol use disorder was not appropriate. The examination noted that that the Veteran's PTSD symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, 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 work-like setting. The examiner opined that all of the PTSD symptoms present had been problems for the Veteran for five years, conservatively speaking. On review, the Board finds that the Veteran's symptoms have approximated deficiencies in most areas such as work, school, family relations, judgement, thinking, and/or mood during the entire appeal period. Therefore, the Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating during the appeal periods from January 2013. During the appeal period, the Veteran's PTSD symptoms that are listed in the rating criteria included near continuous depression and unprovoked irritability with periods of violence. He did not describe symptoms that are unlisted in the rating schedule. With regard to his occupation functioning, the Veteran was a university student for most of the appeal period and worked as a sheriff's deputy. The occupational impacts of PTSD included missing classes due to his symptoms. In 2019, he left his position as a sheriff's deputy; however, he reported that he did not have problems getting along with co-workers at that position. The Veteran reported few social relationships. He reported isolation and a lack of socialization. In November 2019, the VA examiner opined that the symptoms shown on his VA examination had been present in that degree of severity for a period of five years, conservatively. The examiner indicated that all of the symptoms present at the examination were attributable to the Veteran's PTSD. The examiner's opinion regarding the severity of his symptoms was based on the examination and a review of the claims file, including the VA treatment records and examinations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that the Veteran does not wish to pursue a rating in excess of 70 percent for PTSD, and the appeal as that issue was dismissed by the Court. Accordingly, the grant of a 70 percent rating for PTSD is a full grant of the benefit sought. Entitlement to an earlier effective date for an increased rating for right wrist ganglion cyst The law and regulations governing effective dates establish that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110 (a). The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefore is received within one year from such date of discharge or release. 38 U.S.C. § 5110 (b)(1). This statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. An exception to that rule provides that the effective date of an award of an increase shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110 (b)(2), 38 C.F.R. § 3.400 (o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997). An October 2014 rating decision granted service connection for right wrist sprain with ganglion cyst, effective from January 2013. A non-compensable rating was assigned based on a finding of a diagnosed disability with no compensable symptoms. A claim for an increased rating for right wrist ganglion cysts was received in June 2015. A May 2016 Statement of the Case increased the rating for the right wrist to 10 percent effective from May 25, 2016. The rating was assigned under 38 C.F.R. § 4.59 based on painful motion of the right wrist on the May 2016 VA examination. The Veteran seeks an earlier effective date for a 10 percent rating for a right wrist ganglion cyst. The Veteran contends that an earlier effective date for a 10 percent rating is warranted from the date of his increased rating claim. The Veteran's right wrist disability is rated under DC 5215 for limitation of motion of the wrist. A 10 percent rating is assignable for dorsiflexion less than 15 degrees or palmar flexion limited in line with the forearm, both major and minor. The Veteran was afforded a VA examination in October 2014. The examination noted a diagnosis of chronic wrist sprain. The Veteran noted persistent right wrist pain which intermittently radiated to his right forearm and hand. The pain was more bothersome with activities such as writing and gripping with his right hand. He reported increased pain with activities when his wrist pain flared. The examination noted palmar flexion to 80 degrees with no pain on examination of the right wrist. The Veteran was afforded a VA examination in May 2016. The Veteran reported chronic right wrist discomfort, which had gradually worsened. His right wrist discomfort was worsened by such activities as gripping, typing, and writing. The Veteran reported flare-ups of his wrist. The flare-ups were described as soreness whenever he grips something. He reported that he had functional loss and had to take a break. The examination showed palmar flexion to 50 degrees. The Veteran had pain with palmar flexion, dorsiflexion, ulnar deviation, and radial deviation. There was no evidence of pain with weight-bearing. There was no additional loss of function or range of motion after three repetitions. The examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups or when the joint is used repeatedly over time. The Veteran was not experiencing a flare-up at the time of the examination. Ankylosis was not shown. Under 38 C.F.R. § 3.400, the appropriate effective date for an increased rating is the date of the claim unless an increase in disability is factually ascertainable. An increase in the Veteran's right wrist disability was ascertainable in the year prior to the increased rating claim. His October 2014 examination showed pain and flare-ups with use of his wrist. Accordingly, an earlier effective date for a 10 percent rating is granted for right wrist ganglion cyst from June 5, 2014. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability is remanded. 2. Entitlement to service connection for post traumatic changes of the left femur (claimed as a left hip disability) is remanded. The Veteran contends that his right and left hip disabilities are related to a vehicle accident in service or to his service-connected knee disabilities. Service treatment records dated in May 2002 reflect that the enlistment examination noted a history of a left thigh contusion in 1999 due to athletic accident, no surgery. No disabilities of the right hip were noted on the enlistment examination. On a July 2011 post-deployment health assessment, the Veteran reported a history of a vehicle crash during his deployment. The Veteran was afforded a VA examination in August 2015. The examiner diagnosed left hip strain, with changes of old trauma of the mid femoral shaft. The examination noted that the Veteran was in a vehicle wreck in 2005 or 2006 when he hit a big ditch and was thrown to the side of the turret. The examiner noted that the x-ray evidence of trauma of the femoral shaft is consistent with the Veterans complaint of trauma during service. The Veteran was afforded a VA examination in May 2016. The examiner diagnosed bilateral hip strain. The examiner opined that it is less likely than not that the Veteran's left or right hip condition is proximately the result of or aggravated by his service-connected left or right knee disabilities. The examiner noted the Veteran's report of hip discomfort after his knee surgeries and explained that it is likely that the Veteran had a temporary exacerbation of hip pain. The examiner opined, however, that this would not be expected to cause an ongoing hip condition and that any such exacerbation of symptoms would be temporary. The examiner further noted that the Veteran did not exhibit any abnormalities of posture or gait which would be expected to cause or aggravate his hip condition beyond natural progression. The examiner opined that x-rays suggested that his left thigh injury prior to service is more likely the cause of the x-ray abnormalities of the left femur. A remand is necessary to obtain a medical opinion that considers the history of a vehicle crash during service. The VA examination as the opinion did not address consider whether the pre-existing left femur injury was aggravated in service. Nor did the examiners consider whether right hip strain is related to a vehicle crash in service. A remand is necessary to obtain an addendum opinion. 3. Entitlement to an increased rating in excess of 10 percent for left knee muscular ligamentous strain, medial meniscal tear and ACL tear with degenerative joint disease is remanded. 4. Entitlement to an increased rating in excess of 10 percent for muscular ligamentous strain of the right knee is remanded. The Veteran was afforded VA examinations of his knees in August 2014 and August 2015. While the record contains contemporaneous VA examinations regarding the Veteran's knee disabilities, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) or Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examinations lack passive range of motion measurements, notations of pain on weight-bearing testing, and relevant information regarding additional functional loss suffered during flare-ups. A remand is required so that the Veteran may undergo examination that satisfies the requirements of Correia and Sharp. Increased Rating for TBI The rating criteria for TBI provide that any residual with a distinct diagnosis should be separately evaluated under a distinct diagnostic code. An August 2015 VA examination evaluation for TBI showed subjective complaints of depression; anxiety; headache; pain in the back, knees, right shoulder, and wrist; visual disturbance; hearing loss and tinnitus; sleep disturbance; dizziness; and substance use. A September 2015 rating decision denied service connection for a back disability, claimed as due to a motor vehicle accident in service. Service connection is presently in effect for an acquired psychiatric disorder, headaches, hearing loss, tinnitus, bilateral knee disabilities, and a right wrist disability, and those disabilities are evaluated under separate diagnostic codes. No VA examiner has addressed whether the Veteran has a separate diagnosis of a back disability, right shoulder disability, or a disability related to dizziness. A VA examination is necessary to ascertain whether those subjective complaints are related to his service-connected TBI. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the right and left hip disabilities. The examiner should address the following questions: (a) The examiner must opine whether it is at least as likely as not that the Veteran's pre-existing left thigh contusion was aggravated beyond the natural progress of the disorder by his period of active duty service. (b) The examiner must opine whether the Veteran's right hip strain is at least as likely as not related to a vehicle accident that occurred in service in 2005 or 2006. The examiner's attention is directed to the August 2015 VA examination noting a history of a vehicle accident in 2005 in which the Veteran was thrown to the side of a turret. Provide a rationale for the opinion. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee disabilities. 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. 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 record (additional facts are required), or the examiner (does not have the knowledge or training). 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 record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for a VA examination regarding his TBI residuals. The examiner must address the following questions: (a) Is it at least as likely a not that a back disability is related to service-connected TBI? (b) Is it at least as likely as not that a right shoulder disability is related to service-connected TBI? (c) The examiner must opine whether dizziness is associated with a distinct diagnosis. If there is a distinct diagnosis, the examiner must opine whether his disorder manifested by dizziness is at least as likely as not related to service-connected TBI. The examiner must consider the August 2015 examination for TBI, which noted that the Veteran was exposed to an IED blast in service in 2005 or 2006 and a vehicle wreck in 2005 or 2006. The examiner must consider the reported history of a vehicle wreck, which was noted on his post-deployment assessment dated in July 2011. Provide a rationale for the opinion. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.