Citation Nr: 21069830 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-38 272 DATE: November 19, 2021 ORDER Entitlement to an increased 70 percent disability rating for post-traumatic stress disorder (PTSD) is granted. Entitlement to a disability rating in excess of 60 percent for status post total right knee arthoplasty (right knee disability) is denied. FINDINGS OF FACT 1. The Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas for the entire period on appeal. 2. The Veteran's right knee disability has been assigned the maximum disability rating available throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 70 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a disability rating in excess of 60 percent for the Veteran's right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.68, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2015 and June 2015 rating decisions by the Department of Veterans' Affairs (VA) Regional Office in Boise, Idaho. This matter was previously before the Board in November 2020. At that time, the claim for an increased rating for the Veteran's PTSD was remanded in order to obtain an updated VA examination. The claim for an increased disability rating for the Veteran's right knee disability was remanded in order to address the Veteran's claim for restoration of a 60 percent rating. As the Veteran was afforded an updated examination for PTSD and his claim for restoration claim was granted, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also notes that the claim for a TDIU was remanded as part of the November 2020 Board decision. The RO granted the claim in a September 2021 rating decision. As such, the claim was granted in full and will not be addressed by the Board herein. The Veteran appealed the effective date for the TDIU in a VA Form 10182 (Notice of Disagreement). That issue is currently before the Board under the Appeals Modernization Act (AMA) and will be addressed in a separate decision. Increased Ratings Generally, disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Entitlement to a disability rating in excess of 50 percent for PTSD The Veteran is rated at 50 percent for his PTSD pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. VA received the Veteran's claim for an increased rating on December 30, 2014. Diagnostic Code 9411 provides a 50 percent rating for 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. A 70 percent rating is assigned for 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. 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, memory loss for names of close relatives, own occupation or own name. 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. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase "such symptoms as" followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board finds that during the appeal period, the Veteran's PTSD symptoms have been productive of occupational and social impairment with deficiencies in most areas. Namely, the Veteran's symptoms precluded employment, he experienced difficulties in his marital relationship, exhibited impaired judgment and memory, and experienced depression and suicidal thoughts. An October 2021 vocational assessment concluded that the Veteran's PTSD symptoms prevented him from meeting the basic requirements to maintain substantially gainful employment since 2005 due to his inability to maintain focus, follow instructions, maintain a regular schedule, avoid outbursts and arguments and produce work. VA treatment records reflect the Veteran's ongoing treatment, including medication for his PTSD symptoms. A February 2015 mental health note described the Veteran as experiencing increased aggression and anger. The Veteran was also noted to have passive suicidal ideation with no plan or intent. An April 2020 mental status examination noted that the Veteran's memory was "suboptimal." The Veteran reported to the February 2015 VA examiner that he sought mental health treatment because his wife threatened to leave him if he did not address his drinking problem and "instantaneous anger." He also reported that he had recently received a DUI. The Veteran described himself as having no emotions, being "just dead," with hyper vigilance, nightmares, flashbacks, intrusive thoughts, anger, irritability and poor energy. The examiner noted symptoms of depressed mood and anxiety. The Veteran reported to the June 2021 VA examiner that he was adjusting to a recent move, dealing with his wife's health issues and anxious about his son's deployment. The Veteran reported that he continued regular psychiatric visits and medication to address his sleep and irritability issues. The examiner noted that the Veteran experienced symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood and difficulty in adapting to stressful circumstances, including work or a work-like setting. The examiner also noted that the Veteran had somewhat limited insight and experienced hypervigilance, recurring nightmares, flashbacks and intrusive thoughts. According to the examiner, the Veteran was startled by minor stimuli, easily irritated, had difficulty with mood and temper and reacted in a hostile and verbally aggressive manner that was out of proportion. The Board finds that the Veteran's symptoms of hypervigilance, nightmares, flashbacks, irritability, disproportionate anger, depression, anxiety, passive suicidal ideation and difficulty in adapting to stressful circumstances meet the criteria for a 70 percent rating pursuant to Diagnostic Code 9411. These symptoms reflect that the Veteran would experience difficulty in employment, had deficiencies in his primary relationship with his wife, and exhibited deficiencies in judgment, mood and thinking. Based on the severity and frequency of the symptoms, the Board finds that the Veteran's PTSD more closely approximated the criteria for a 70 percent disability rating throughout the appeal period. The Board also finds that the record does not reflect total social and occupational impairment so as to warrant a higher rating at any point during the appeal period. The Veteran did not describe symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or other; an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place or other symptoms of similar severity, frequency, and duration. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran reported that he maintained good relationships with his adult sons. The Veteran is routinely described as well-groomed and cooperative in the mental status examinations throughout the VA treatment records. He also consistently denied experiencing hallucinations or delusions. Although the Veteran expressed passive suicidal ideation during a mental health treatment visit, he noted that he had no plan or intent and he otherwise consistently denied suicidal ideation. As the record does not support a finding of total occupational and social impairment, a 100 percent disability rating is not warranted. Entitlement to a disability rating in excess of 60 percent for right knee disability As noted, following the November 2020 remand, the Veteran's 60 percent disability rating for his total right knee replacement was restored from August 28, 2012 pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055. A 60 percent evaluation is the maximum schedular evaluation available under Diagnostic Code 5055. While a rating of 100 percent is available for the year following knee replacement under DC 5055, the Veteran has not had a knee replacement during the relevant period on appeal and was previously awarded the 100 percent rating following his 2009 right knee replacement surgery. There are no other diagnostic codes pertaining to the knee or leg that provides for an evaluation in excess of 60 percent. See 38 4.71a, Diagnostic Codes 5256-5263. Moreover, the amputation rule provides, in pertinent part, that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were an amputation to be performed. 38 C.F.R. § 4.68. As relevant here, amputation of the leg at the knee warrants a 60 percent rating under DC 5162. 38 C.F.R. § 4.71a. Therefore, any rating for the Veteran's right knee disability should not exceed 60 percent because this would run afoul of the amputation rule under 38 C.F.R. § 4.68. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board finds that the Veteran has at least been assigned the maximum 60 percent rating, which contemplates chronic residuals consisting of severe painful motion or weakness, available for his service-connected right knee disability under the applicable rating criteria, beginning August 28, 2012. The Board also notes that the Veteran acknowledges that he has the maximum rating available for his right knee disability, and that in correspondence received from the Veteran in October 2021, he affirmatively stated that he was not seeking a rating higher than 60 percent for his right knee condition (other than TDIU). As the Veteran's TDIU claim will be addressed in a separate decision, the claim for a disability rating in excess of 60 percent for the right knee disability is denied. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, Associate 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.