Citation Nr: 21070397 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-44 055 DATE: November 23, 2021 ORDER Service connection for residuals of cold injuries to the ankles, feet, hands, shoulders, and neck is denied. An initial rating in excess of 50 percent for posttraumatic stress disorder with secondary episodic alcohol use disorder and cannabis use disorder (PTSD) is denied. REMANDED Entitlement to service connection for tremors of the hands and legs, to include as due to exposure to solvents and/or herbicide agents, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a back disability, to include as secondary to a left knee disability, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has had a disability attributable to cold injuries to the ankles, feet, hands, shoulders, and/or neck during or proximate to the pendency of his claim. 2. During the period on appeal, the Veteran's PTSD has been manifested by no more than occupational and social impairment with reduced reliability and productivity due to depressed mood, flattened affect, and difficulty in establishing and maintaining effective work and social relationships; occupational and social impairment with deficiencies in most areas has not been shown. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for residuals of cold injuries to the ankles, feet, hands, shoulders, and/or neck have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1971 to December 1972, to include service in Vietnam. His decorations include the National Defense Service Medal and the Vietnam Service Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon. The issues on appeal were previously before the Board in March 2019, when they were remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. 1. Entitlement to service connection for residuals of cold injuries is denied. The Veteran seeks to establish service connection for residuals of cold injuries to the ankles, feet, hands, shoulders, and neck. He asserts that he was injured while stationed at Fort Greeley, Alaska, while participating in field operations. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when a claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The term "disability" as used for VA purposes generally contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In the present case, the record does not contain any probative evidence to suggest that the Veteran has had a disability attributable to in-service cold injuries to the ankles, feet, hands, shoulders, and/or neck at any time during or proximate to the pendency of his claim. Although he asserts that has such disabilities, and he is competent to describe the symptoms he experiences, there is nothing in the record to establish that he has the specialized training or experience necessary to render a competent opinion with respect to medically complex matters relating to whether any symptoms he experiences may be associated with cold injury he reports having sustained decades ago, during service. As such, his statements in that regard cannot be afforded any probative weight. The Board acknowledges that the Veteran has not been afforded a VA examination and/or opinion in connection with this matter. However, in the absence of any probative evidence indicating that he has a current disability of ankles, feet, hands, shoulders, and/or neck that may be associated with in-service cold injury, no examination or medical opinion is necessary. The preponderance of the evidence is against the claim. As such, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. The appeal of this issue must be denied. 2. Entitlement to a rating in excess of 50 percent for PTSD is denied. The Veteran seeks a higher rating for his PTSD. He contends, in essence, that his PTSD is more severe than currently evaluated. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 50 percent rating is warranted 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 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. Id. A 70 percent rating is warranted where 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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 or place; and memory loss for names of close relatives, own occupation, or own name. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation . . . requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118. When evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). In December 2015, the Veteran underwent a VA examination. He reported reexperiencing, avoidance, negative cognitions and mood, as well as hypervigilance. The examiner diagnosed the Veteran with PTSD, episodic alcohol use disorder, and cannabis use disorder. Symptoms associated with the Veteran's PTSD included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effect relationships, and difficulty in adapting to stressful circumstances. The examiner observed that the Veteran presented to the examination on time, dressed in casual but neat clothing. He was cooperative with the examiner and did not over-endorse or over-embellish his stressors. The examiner noted a depressed and anxious mood, with a flat affect. The Veteran denied suicidal or homicidal ideation. He could attend to and concentrate on a task at hand without difficulty. He could calculate, abstract, and his memory appeared to be intact for immediate and long term, but delayed recall was impaired. His speech was clear and coherent. There was no paranoia, no ideas of reference, no delusions, and no hallucinations. The examiner noted occupational and social impairment with reduced reliability and productivity. Pursuant to the Board's March 2019 remand, the Veteran underwent another VA PTSD examination in January 2020. The Veteran reported alcohol use in remission, and the examiner attributed all symptoms noted as due to PTSD. The Veteran reported never being psychiatrically hospitalized. At present, he had no involvement with mental health counseling and took no psychotropic medications. The examiner noted 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. Symptoms were noted to include depressed mood, flattened affect, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was dressed appropriately and presented with a quiet, stoic demeanor. His mental status was not limited, with normal psychomotor activity. No auditory or visual hallucinations, paranoia, or suicidal or homicidal thoughts were noted. The Board has reviewed the Veteran's VA treatment records throughout the appeal period but notes there is no indication of psychiatric treatment. An October 2014 VA primary care note indicated mood and affect were normal, as well as normal memory and judgment. A January 2020 VA treatment note indicates that the Veteran denied depression or anxiety. Regarding occupational impairment, as noted in the January 2020 VA examination, the Veteran has been retired since age 56 or 57, but nothing in the record indicates that his ability to work was hindered by his PTSD. The Board finds that a rating in excess of 50 percent for the Veteran's PTSD is not warranted at any point pertinent to the period on appeal. The symptoms he has described during the pendency of the appeal most closely approximate the currently assigned 50 percent rating. Here, no examiner has opined that the Veteran's PTSD has resulted in deficiencies in most areas. Nor is such a finding otherwise established by the record. Further, he has not exhibited symptoms such 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, or other symptoms of similar severity, frequency, or duration so as to warrant a rating in excess of 50 percent. The Board acknowledges that the December 2015 examiner noted difficulty in adapting to stressful circumstances. However, the Board finds that the Veteran's overall symptomatology is not of such frequency, severity, and duration as to result in deficiencies in most areas. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The appeal of this issue must be denied. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, another remand is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claims and to afford him every possible consideration. 1. Entitlement to service connection for tremors of the hands and legs is remanded. The Veteran seeks to establish service connection for tremors of the hands and legs. He asserts that his tremors are the direct result of his in-service exposure to solvents and/or to herbicide agents in Vietnam. In March 2019, the Board remanded this matter, in part, to obtain a medical opinion as to whether it was at least as likely as not that the Veteran had a disorder manifested by hand and leg tremors that had its onset in or was otherwise attributable to his period of active service, to include as a result of his conceded exposure to solvents or herbicide agents during service. The Veteran was provided a VA examination in February 2020. The examiner confirmed a diagnosis of a movement disorder, characterized as tremors of the hands and legs. The examiner opined that it was less likely than not that the Veteran's tremor condition was the result of herbicide exposure. In so doing, the examiner noted that tremors were not included in the list of conditions which are recognized as being presumptively due to such exposure. The examiner also noted that the Veteran's tremors had not been thoroughly worked up to see if there was another cause, to include marijuana use. The Board finds the examiner's opinion inadequate for purposes of adjudication. First, the examiner did not comment on the likelihood that the Veteran's tremors could be attributed to in-service exposure to solvents. In addition, although it is true that service connection cannot be granted for the Veteran's tremor condition as presumptively due to exposure to herbicide agents, service connection for such a condition can nevertheless be established on the basis of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to herbicides does not preclude direct service connection for other conditions based on such exposure); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The examiner provided no rationale as why the Veteran's tremor condition could not be directly related to herbicide exposure in Vietnam, notwithstanding that it is not included in the law as a presumptive condition. As such, the matter must again be remanded. Stegall v. West, 11 Vet. App. 268, 271 (1998). The examiner's suggestion that the Veteran's tremors could be due to his use of marijuana also needs to be further explored, inasmuch as his use of marijuana has been recognized as associated with his PTSD. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). 2. Entitlement to service connection for a left knee disability is remanded. The Veteran seeks to establish service connection for a left knee disability. He asserts that his left knee disability is attributable to conducting repairs on heavy equipment during service. When this case was remanded in March 2019, the Board found that the Veteran's pre-existing left knee disability increased in severity during service. With that concession in mind, the Board requested, among other things, that a medical opinion be obtained as to whether there was "clear and unmistakable" evidence that such increase in disability was due to the natural progression of the disease. If there was no clear and unmistakable evidence that such increase was due to natural progression, the Board asked that the examiner consider the Veteran sound with respect to the left knee at service entry and opine as to whether it was at least as likely as not that his left knee disability had its onset in service or was otherwise related to service, to include as a result of the impact of his duties as a heavy equipment repairman. A February 2020 VA examination report noted a diagnosis of knee instability. The examiner opined that the knee condition was "[l]ess likely aggravated beyond natural progression." The Board finds that the February 2020 VA opinion is inadequate because the examiner applied the wrong standard. As noted previously, because the presumption of soundness applies, the question to be addressed is whether it is "clear and unmistakable" that no in-service aggravation occurred. 3. Entitlement to service connection for a back disability is remanded. The Veteran seeks to establish service connection for a low back disability. He essentially contends that he has had low back pain since service. In March 2019, the Board remanded this matter, in part, to obtain a medical opinion as to whether it was at least as likely as not that the Veteran had a back disability that had its onset in, or was otherwise attributable to, his period of active service. As part of the remand, the Board also instructed the AOJ to obtain records from the Social Security Administration (SSA). In the records obtained from SSA, the Veteran reported, in pertinent part, that his back disability was made worse by his knee condition. In light of foregoing, a decision on the Veteran's claim for service connection for a left knee disability could significantly impact the decision on his claim for service connection for a back disability; that is to say, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the Board will remand the back disability claim as well. These matters are REMANDED for the following action: 1. Arrange to have a qualified clinician review the claims file for purposes of providing an addendum medical opinion addressing the likelihood that the tremors of the Veteran's hands and legs are related to his conceded in-service exposure to solvents and/or herbicide agents. If the examiner finds that another examination of the Veteran is required, to include for purposes of undertaking any additional testing, one should be undertaken. After reviewing the record, and undertaking any additional examinations and/or testing deemed necessary, the clinician should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that a disorder manifested by tremors of the Veteran's hands and legs had its onset in, or is otherwise related to, his period of active service, to include as due to his presumed in-service exposure to herbicide agents and/or his conceded in-service occupational exposure to solvents. In this regard, the examiner is advised that offering an unfavorable opinion based solely on the fact that the Veteran's disability is not among the list of diseases presumed to be due to exposure to herbicide agents is not sufficient. Rather, the examiner must discuss the likelihood of a relationship in terms of the Veteran's individual risk factors. If it is the examiner's conclusion that it is unlikely that the Veteran's disorder had its onset in, or is otherwise related to, his period of active service, to include as due to his presumed in-service exposure to herbicide agents and/or his conceded in-service occupational exposure to solvents, the examiner should offer a further opinion as to whether it is at least as likely as not that a disorder manifested by tremors of the Veteran's hands and legs has been (a) caused or (b) aggravated (i.e., permanently or temporarily worsened beyond natural progression) by his service-connected PTSD, to include the associated cannabis use disorder that has been recognized as service connected. In so doing, the examiner should consider and discuss the February 2020 VA examiner's statement to the effect that it is possible that the Veteran's tremors are related to his marijuana dependence. A complete medical rationale for all opinions expressed must be provided. If an opinion cannot be provided without resorting to speculation, the examiner should a provide complete explanation as to why that is so. In so doing, the examiner is requested to explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or whether the limits of current medical knowledge have been exhausted in providing an answer to the particular question at issue. 2. Also arrange to have the Veteran scheduled for a VA examination of his left knee. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should prepare a report addressing each of the following questions: (a.) Is it clear and unmistakable (i.e., manifest, obvious, or undebatable) that the Veteran's left knee disability existed prior to his entry into service? (b.) If it is clear and unmistakable that the Veteran's left knee disability existed prior to service, is it also clear and unmistakable (i.e., manifest, obvious, or undebatable) that the left knee disability did NOT increase in severity during service beyond the natural progress of the condition? If it is the examiner's conclusion that the Veteran's left knee disability did not clearly and unmistakably exist prior to service, and/or that it is not clear and unmistakable that the left knee disability did NOT increase in severity during service beyond the natural progression of the condition, then the examiner should offer a further opinion as to whether it is at least as likely as not that the Veteran's left knee disability had its onset in, or is otherwise related to, service, to include as a result of the impact of his duties as a heavy equipment repairman. Finally, the examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's back disability has been (a) caused or (b) aggravated (i.e., temporarily or permanently worsened beyond natural progression) by his left knee disability, to include as a result of altered gait mechanics. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.