Citation Nr: 21072516
Decision Date: 12/03/21	Archive Date: 12/03/21

DOCKET NO. 10-40 444
DATE: December 3, 2021

ORDER

Entitlement to an initial disability rating of 20 percent, but no higher from March 15, 2007, for a lumbar spine disability with right sacroiliac joint dysfunction (also referred to herein simply as "lumbar spine disability"), is granted.

Entitlement to service connection for right lower extremity radiculopathy as secondary to his service-connected lumbar spine disability, from November 28, 2016 is granted.

Entitlement to service connection for left lower extremity radiculopathy as secondary to his service-connected lumbar spine disability, from November 28, 2016 is granted.

Entitlement to an initial disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD), is denied.

Entitlement to service connection for a bilateral knee condition, to include as secondary to his service-connected foot and heel disabilities, is denied.

FINDINGS OF FACT

1. Granting the benefit of the doubt to the Veteran, from March 15, 2007, the Veteran's lumbar spine disability with right sacroiliac joint dysfunction manifested as forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees during a flare up.

2. From November 28, 2016, the Veteran's service-connected lumbar spine disability is productive of associated right lower extremity radiculopathy.

3. From November 28, 2016, the Veteran's service-connected lumbar spine disability is productive of associated left lower extremity radiculopathy.

4. The Veteran's PTSD has been productive of symptoms no more severe than 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.

5. The Veteran's bilateral knee disability is not related to active duty service or to a service-connected disability.

CONCLUSIONS OF LAW

1. The criteria for an initial disability rating of 20 percent, but no higher, for a service-connected lumbar spine disability, from March 15, 2007 are met. 38 U.S.C. §§ 1110, 1131, 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 5252-5237.

2. The criteria of service connection for right lower extremity radiculopathy as secondary to a service-connected lumbar spine disability, are met. 38 U.S.C. §§ 1110, 1131, 7105; 38 C.F.R. §§ 3.102, 3.303, 3.310(a).

3. The criteria of service connection for left lower extremity radiculopathy as secondary to a service-connected lumbar spine disability, are met. 38 U.S.C. §§ 1110, 1131, 7105; 38 C.F.R. §§ 3.102, 3.303, 3.310(a).

4. The criteria for an evaluation in excess of 50 percent for PTSD, are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411.

5. The criteria for entitlement to service connection for a bilateral knee condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1982 to November 1982 and from April 2002 to May 2005.

This appeal is before the Board of Veterans' Appeals (Board) from multiple rating decisions from Department of Veterans Affairs (VA) Regional Offices (RO) and in December 2020, the Veteran appeared and provided testimony before the undersigned Veteran's Law Judge (VLJ) and a transcript of that hearing is associated with the claims file. Additionally, the Veteran's claims were previously remanded by the Board in September 2014, May 2016, and December 2018; and, for the reasons described herein, the Board finds substantial compliance with all remand directives. Stegall v. West, 11 Vet. App. 268 (1998).

The Board must address two initial matters, first, the Veteran's service treatment records (STRs) from his second period of active duty service from April 2002 to May 2005 are largely unavailable, presumed lost, and efforts to obtain the STRs have been exhausted. See September 2007 VA Letter. Additionally, treatment records from the New York VA Medical Center that are not already associated with the claims file are also presumed lost. See July 2020 Letter. The Board is aware that in such cases, VA has a heightened duty to explain its findings and conclusions and to carefully consider the benefit-of-the doubt rule. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). While the Board's analysis of the claims on appeal have been undertaken with these heightened duties in mind, the dispositions herein do not turn on the absence of the Veteran's STRs. As will be explained below, the available STRs contain his alleged proof of injury; however, the evidence cited pertains to a separate service-connected disability and not to his bilateral knee disabilities. In that regard, the Board acknowledges concerns related to inadequate VA dispositions due to missing records; however, in conjunction with the above listed reasoning and as further explained below, the missing records in this case are irrelevant to the dispositions rendered herein.

Second, in November 2019, the Veteran was scheduled for multiple VA examinations; however, he canceled the VA examinations. The Board acknowledges his December 2020 complaints of difficulty working with the VAMC and acknowledges the evidence of record contains requests to switch treatment centers. However, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). As such, the Board proceeds with adjudicating his claims based on the current evidence of record.

Increased Ratings

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

1. Lumbar Spine from March 15, 2007

2. Right lower Extremity Radiculopathy from November 28, 2016

3. Left lower Extremity Radiculopathy from November 28, 2016

The Veteran seeks an initial disability rating in excess of 10 percent for his service-connected lumbar spine disability from March 15, 2007. 

Under Diagnostic Code 5003, arthritis established by X-ray findings will be rated on the basis of limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the vertebrae of the thoracolumbar spine are considered a group of minor joints. 38 C.F.R. § 4.45. 

This Veteran's service-connected lumbar spine disability is rated under 38 C.F.R. § 4.71(a), Diagnostic Code 5252-5237. The Veteran's disability has previously been rated based on limitation of motion of the though (5252); however, based on the combined code, his disability is eligible to be rated under either code for limitation of motion of the thigh or spine. Disabilities of the spine are evaluated under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The criteria of the General Rating Formula are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1).

With regard to the thoracolumbar spine, the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243) provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Code 5242.

A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id.

A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id.

When evaluating joint disabilities rated on the basis of limitation of motion, the VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).

Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, the VA must determine the overall functional impairment due to these factors.

Alternatively, intervertebral disc syndrome (IVDS) is rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS on Incapacitating Episodes, whichever method results in a higher disability rating. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243.

An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1).

Turning to the evidence of record, in December 2007 private medical records indicate he had tenderness to the lumbar spine with restricted extension and lateral bend and he was diagnosed with lumbago and osteoarthritis. 

In a July 2008 rating decision, he was granted a non-compensable rating for his lower back disability affecting his right hip effective December 6, 2007.

In May 2010 a private medical record indicates he received treatment for lower back pain which he subjectively rated as 8/10. His lumbar flexion was 48 degrees, his extension was 14 degrees, his left side bend was 17 degrees, his right-side bend was 16 degrees, his right rotation was 18 degrees, his left rotation was 20 degrees; and his total range of motion was 133 degrees.

In June 2010 he underwent a VA spine examination where the Veteran subjectively reported he has not experienced an incapacitating episode requiring bed rest. He also subjectively reported that "about 2-3 times a week the pain will flare to 9/10... No additional functional limitation during flare-up." He also subjectively stated he normally wears a back brace for support. The assessment conducted range of motion testing on three repetitions and his forward flexion was 70 degrees with pain at the end of range; extension was 20 degrees with pain at end of range, his left lateral flexion was 25 degrees with pain at end of range, his right lateral flexion was 30 degrees with no pain, and his bilateral rotations were 30 degrees without pain. His total range of motion was 175 degrees. He was negative for pain upon palpitation, muscle spasm or tenderness, ankylosis, and radiculopathy. As to functional loss with use, the examiner did not note any additional functional loss; however, the examiner wrote: "I cannot determine without resort to mere speculation whether outside the clinic setting any pain, fatigue, weakness, lack of endurance, or incoordination would cause any additional functional loss."

Based on the June 2010 examination, in an August 2010 statement of the case he was granted a 10 percent disability rating for his lower back disability affecting his right hip effective March 15, 2007.

In December 2013 and August 2014, VA records indicate he received treatment for lower back pain.

In September 2014, the Board remanded the Veteran's claims to afford him a Board hearing. He was subsequently afforded a Board hearing in January 2016; however, during the hearing his lower back increased rating claim was not addressed and in May 2016 his claim was again remanded to afford the Veteran a hearing. (This hearing request was later withdrawn. See December 2018 Remand.).

On August 22, 2016, a VA record indicates he was given a back brace to reduce his back pain. On November 28, 2016, a VA record indicates he was diagnosed with lumbar radiculopathy.

A May 2017 letter from the Veteran's private physician indicates he was diagnosed with bilateral lower extremity radiculopathy and sciatica that developed as a result of his service-connected lumbar spine condition. 

In January and April 2018, VA records indicate he received treatment for lower back pain.

In December 2018, the Board again remanded the Veteran's claims to acquire a new VA back examination and to consider the evidence within the May 2017 private physicians' letter. In October 2019, the Veteran was scheduled to receive a VA back examination report; however, he "declined" the examination. 

In November 2019, VA records indicate he received treatment for low back pain.

In December 2020 the Veteran appeared and provided testimony before the undersigned VLJ. He alleged that he did not believe he was "able to get a fair shake" at his VA examinations and his representative described it as an "adversarial situation." He also subjectively stated that he can stand up and sit down for about 45 minutes to an hour before his back starts to hurt

After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds that granting the Veteran the benefit of the doubt, the evidence of record indicates his lumbar spine disability manifested at a 20 percent rating based on limitation of forward flexion throughout the entire appeal period beginning March 15, 2007. Additionally, the Board finds the evidence of record indicates he developed bilateral lower extremity radiculopathy as a result of his service-connected lumbar spine disability since November 22, 2016 and thus service connection for each disability is warranted. 

As to his increased rating claim, to receive a 20 percent rating, his lumbar spine disability would need to manifest as forward flexion greater than 30 degrees but not greater than 60 degrees, or combined range of motion not greater than 120 degrees, or as muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id.

Here, in May 2010 a private medical record indicates he received treatment for lower back pain rated 8/10 and his forward flexion was only 48 degrees. Subsequently, in June 2010 a VA examination could not determine his functional loss due to pain, fatigue, weakness, or lack of endurance. Thus, it is reasonable to assume the Veteran's lumbar spine, when flared, was accurately measured during the May 2010 examination and was only 48 degrees. Moreover, since that time, the Veteran has continually voiced complaints related to back pain and limitation of motion. Furthermore, July 2010 was the last time he received a VA examination as he has frustrated the Board's ability to properly rate his lower back by cancelling his November 2019 scheduled examination. As such, the Board can only assign a rating based on the evidence available. Additionally, the evidence of record does not contain any competent or credible medical evidence indicating his lumbar spine disability manifested as forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Indeed, the evidence of record is devoid of any indication his lumbar spine disability warrants a rating in excess of 20 percent under Diagnostic Code 5237. Thus, granting the benefit of the doubt to the Veteran, the Board finds his lumber spine disability affecting his right hip results in the functional equivalent of a 20 percent rating due to functional loss attributed to pain, weakness, fatiguability, and incoordination. DeLuca, 8 Vet. App. at 204-07. 

The Board has also considered whether the Veteran might be entitled to a higher evaluation under the ratings criteria for IVDS found in Diagnostic Code 5243. To receive a 40 percent disability rating requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. However, the evidence of record does not indicate the Veteran has been diagnosed with IVDS, or experienced an incapacitating episode consistent with the symptomatology for IVDS at any point during the appeal period. As such, a separate rating is not warranted for IVDS under Diagnostic Code 5243.

Turning to the bilateral lower extremity radiculopathies, these disabilities are "inferred issues" in the context of an increased rating claim that must be considered when the record indicates it may be available, even if the Veteran does not place eligibility for this ancillary benefit at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Accordingly, these issues have been added for appellate consideration.

Here, the Board finds the evidence of record supports the granting of service connection for associated neurologic symptoms. See 38 C.F.R. § 4.71(a), General Rating Formula Note (1). Specifically, the evidence of record reflects the Veteran received treatment for right and left lower extremity radiculopathy on November 28, 2016. Moreover, in May 2017 his private physician submitted a letter to the Board opining it was at least as likely as not his radiculopathies were the result of his service-connected lumbar spine disability. Furthermore, the evidence of record does not contain any competent or credible medical opinion to counter the private opinion. Additionally, November 28, 2016 is the earliest the evidence of record indicates a diagnosis for such disabilities. As such, the Board will afford the Veteran the benefit of the doubt and find that service connection for right and left lower extremity lumbar radiculopathy as secondary to his service-connected lumbar spine disability is warranted.

In sum, the Board finds the evidence of record supports the assignment of an evaluation of 20 percent, but no higher, for the Veteran's service-connected lumbar spine disability from March 15, 2007. Additionally, the Board finds the Veteran is entitled to service connection for right and left lower extremity radiculopathy as secondary to his service-connected lumbar spine disability effective November 28, 2016. To the extent that any higher or separate ratings are sought for these claims, the preponderance of the evidence is against each claim and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Accordingly, the Veteran's claim for a disability rating of 20 percent, but no higher, for his lumbar spine disability is granted and service connection for bilateral lower extremity radiculopathy as secondary to his lumbar spine disability is also granted.

4. PTSD 

The Veteran's service-connected PTSD is evaluated as 50 percent disabling under DC 9411 of the General Rating Formula for Mental Disorders.

A 50 percent disability 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 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 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; impaired impulse control (such as unprovoked inability 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 warranted where 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; memory loss for names of close relatives, own occupation, or own name.

The United States Court of Appeals for the Federal Circuit held that an 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." Vasquez-Claudio v. Shinseki, 713 F3d 112, 11617 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, 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.'" Vasquez-Claudio, 713 F.3d at 11718; 38 C.F.R. § 4.130, DC 9411.

Further, 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." 38 C.F.R. § 4.126(a). The Board 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 examination." Id.

The schedular criteria incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. §§ 4.125, 4.130. Since August 4, 2014, VA has required a diagnosis of a mental disorder that conforms with the DSM-5. For claims prior to that date, VA required a diagnosis that conformed with the DSM-IV-TR. See Schedule for Rating Disabilities: Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093, 45,093 94 (Aug. 4, 2014 (amending 38 C.F.R. § 4.125)). The DSM-5 eliminated the Global Assessment of Functioning (GAF) scores used in the DSM-4.

Turning to the evidence of record, a February 2012 VA treatment record indicates he denied experiencing suicidal ideation. An August 2012 VA mental health treatment note indicated he denied experiencing suicidal ideation and the note characterized his risk level as "low."

In January 2013, he underwent a VA PTSD examination report which included a review of the claims file, a recitation of complaints and medical history, and examination results. The report determined he experienced occupational and social impairment with reduced reliability and productivity. He subjectively reported difficulty sleeping, checking the doors and locks "every night," and that he experiences feelings of social withdrawal and helplessness. The report also determined he experienced difficulty falling asleep and concentrating, hypervigilance, exaggerated startle response, depressed mood, anxiety, suspiciousness, and a chronic sleep impairment.  The report determined he did not experience suicidal ideation.

Also, in January 2013, a VA mental health treatment note indicates he was casually and appropriately dressed and groomed, his eye contact was within normal limits, he was polite, cooperative, alert and oriented, his speech was within normal limits in rate, tone, and soft in volume, his thought process and content were within normal limits and there were no overt signs of psychotic process or thought disorder. He also stated he experiences hypervigilance and low mood and energy but denied experiencing suicidal ideation.

In a March 2014 statement to the Board, the Veteran's representative argued the Veteran's PTSD symptoms warrants "at least a 70 percent rating."

In July 2014, the Veteran underwent a private psychiatric examination by a Dr. P.M. which included a review of the claims file, a recitation of complaints and medical history, and psychiatric examination results. The report noted he experiences anxiety and fear of crowds and maintains a relationship with his daughter. The report noted his affect was flat, his hygiene and dress were normal, he was oriented in place and time, his memory was intact, and thought process and content were "somewhat slow and deliberate." The Veteran subjectively reported feeling depressed, not wanting to be around people, anger outbursts, difficulty staying asleep, loss of interest, "[felt] like others would be better off if he were dead," and thoughts of suicide.

Also, in a July 2014 statement to the Board, the Veteran's representative argued the Veteran's PTSD warrants a 70 percent disability rating based on his GAF score. 

In August 2014, a VA mental health note indicates he just returned from vacation, bought a home, was feeling "stable" and denied experiencing suicidal ideation. In May 2015, a VA mental health note indicates his appearance was alert, his speech was normal in rate and volume, his thought process and content were normal, and his insight and judgement were good. A May 2016 VA mental health note indicates his appearance was normal and his thought process and content were normal. In November 2016, a VA mental health note indicates he was appropriately dressed, spoke in normal rate and volume, and normal thought process and content, and his judgement and insight were good. In January 2018, a VA mental health note indicates he had a "low suicide risk," lives with his wife and two children, and cited to his family as "reason he would not ever harm himself." The record also stated his appearance was appropriate, his speech was normal in rate and volume, his thought process and content were normal, and his insight and judgement were good. 

In a September 2018 Informal Hearing Presentation (IHP) from the Veteran's representative, he requested that if an increase in the Veteran's PTSD is not granted, that the Veteran be afforded a new VA examination. 

A May 2018 VA mental health evaluation note indicates he denied suicidal ideation and sometimes feels depressed and anxious. In May, November, and December 2019 VA mental health evaluation notes, he denied experiencing suicidal ideation. 

In November 2019, he was scheduled to undergo a VA PTSD examination report; however, the Veteran cancelled the appointment.

During the Veteran's December 2020 Board hearing, he alleged his PTSD has worsened. Additionally, when his representative asked, "Do you have any thoughts of suicide?" the Veteran responded, "I don't know, sometimes maybe." The Veteran also reported that he did not appear at his last VA examination because he did not approve of the treatment at the specific VA Medical Center.

After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran's PTSD warrants a disability rating in excess of 50 percent.

An initial matter, the Board acknowledges the July 2014 statement alleging he is entitled to a 70 percent disability rating based on his GAF score; however, as previously stated, GAF scores are no longer utilized to determine a PTSD disability rating.

As to his increased rating claim, 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; impaired impulse control (such as unprovoked inability 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.

Here, the Board acknowledges the Veteran's statement of suicidal ideation during his December 2020 Board hearing and his two claims of suicidal ideation in the evidence of record. However, the evidence of record contains a litany of VA treatment records where the Veteran continually denies experiencing suicidal ideation from 2012 to 2019. Indeed, in 2019 he stated he would "never harm himself." Moreover, the board acknowledges and sympathizes with his complaints and symptoms of irritability and getting along with others; however, these symptoms are contemplated by his current 50 percent rating. Furthermore, the evidence of record contains a multitude of VA mental health records documenting from 2014 to 2018 where he consistently appears appropriately dressed, speaks in normal rate and tone and has clear thought process and judgement. Additionally, the evidence indicates he still maintains relationships with his wife and children; thus, evidencing his ability to maintain effective relationships. Also, other than his two instances of suicidal ideation, the evidence of record does not contain any other competent or credible medical evidence indicating he experiences the symptoms contemplated by a 70 percent rating. Indeed, the ability to properly rate the Veteran's disability has been frustrated by his refusal to attend his latest VA examination. 

Considering the above and based on the evidence available, the Board finds the preponderance of the evidence is against finding the Veteran's PTSD warrants a disability rating in excess of 50 percent. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran's claim for a disability rating in excess of 50 percent for his service-connected PTSD, is denied.

Service Connection

5. Bilateral Knee Condition

The Veteran seeks entitlement to service connection for a bilateral knee condition that he alleges is the result of active duty service to include as secondary to his service-connected foot and heel disabilities. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

For certain chronic diseases, such as degenerative arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 

In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996).

Turning to the evidence of record, the STRs indicate his September 1981 separation examination reveals he had a left knee scar. A Reserve medical note indicates he was ordered to rest from January 19, 1989 to February 8, 1989 due to a left knee injury. Reserve reports of medical examinations in March 1989, September 1993, and August 1999 do not indicate he experienced any issues with either knee. In April 2004, an individual sick slip reveals he was prohibited from "prolonged standing more than one hour for next two weeks" due to heel and foot injuries and the document was signed by a Captain M.K. in the Navy. In April 2005, another sick slip indicates he was prohibited from running or marching for more than one hour; however, no reason was given.

A March 2007 VA treatment record indicates he reported right leg pain

In December 2007, he underwent a private orthopedic examination from Dr. H.O. and was diagnosed with "Patella subluxation and chondromalacia with early osteoarthritis right knee and right knee pain."

A September 2009 VA treatment record indicates he received treatment for left and right knee pain.

A May 2010 private orthopedic MRI impression section reveals "moderate chronic sprain" of the MCL.

During the Veteran's July 2014 psychiatric examination, he reported that he has underwent one left knee surgery and two right knee surgeries and that these took place between 1998 and 2014 and "all were from injuries suffered at work when he worked for BMW."

In October 2017, he underwent a VA knee examination report; however, in a December 2018 Board remand, the Board found the nexus opinions to be inadequate.

In July 2020 VA addendum opinions were entered into the claims file. The examiner determined the Veteran's bilateral knee condition was less likely than not related to his active service "since the Veteran's STRs are silent for any bilateral knee condition or injury." Also, his bilateral knee condition was less likely than not caused by or aggravated by his service-connected foot and heel disabilities since "these are separate and distinct medical conditions. One condition does not have cause or have effect on the other." 

During the Veteran's December 2020 Board hearing he alleged that during his second period of active duty service he experienced knee injuries. Specifically, he stated, "the doctor from the Navy and (indiscernible) which is a captain for them told me... you can't go back on the line because you can't walk more than an hour and you can't stand up more than an hour." 

After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran's bilateral knee disability is related to active duty service or to a service-connected disability. 

As an initial matter, since the Veteran's bilateral knee disabilities have been characterized as a form of arthritis, the Board first considers entitlement to service connection on a presumptive basis. However, as explained further below, since his bilateral knee disabilities have not been shown to have manifested by any symptomatology during or within one year of active service separation, the presumptive service connection provisions of 38 C.F.R. §§ 3.303(b), 3.307 and 3.309(a) are not applicable.

As to direct service connection, the Board recognizes that the Veteran currently is diagnosed with bilateral chondromalacia. Thus, the first element of service connection is established. See Shedden, 381 F.3d at 1167. However, the evidence of record does not support the finding of the second and third required elements; specifically, an in-service injury and a medical nexus between his current disabilities and his in-service injury. 

Here, the Board acknowledges the Veteran suffered a left knee injury during his first period of active service in January 1989; however, the Veteran has at no point alleged his current knee disability is related to this incident in-service. Moreover, the evidence of record contains multiple Reserve examinations that do not contain any indications this incident was anything more than acute and transitory including three subsequent examinations in March 1989, September 1993, and August 1999. As such, based on the above and for the reasons further explained below, the Board will proceed as though the Veteran did not suffer an in-service injury.

The Board further acknowledges the Veteran's STRs from his second period of service are largely absent and the Veteran alleges it was during this period he suffered his alleged knee injury. Specifically, he stated he was injured and a Captain in the Navy prohibited him from standing or walking for longer than an hour. However, while the evidence of record contains a sick slip with similar orders signed by a Captain in the Navy, the sick slip specifically notes it was for heel and foot injuries and makes no mention of any knee injury. Moreover, other than this specific incident, the Veteran has not alleged his injury was the result of any other in-service injury or incident. The Board also notes, the record contains statements from the Veteran that between 1998 and 2014 he underwent three separate surgeries for his knees as a result of injuries incurred during periods of private employment rather than due to his active service. Furthermore, the evidence of record is silent for any treatment for or complaints related to a knee injury until 2007; almost two years after active duty service. Additionally, the July 2020 VA examiner determined his bilateral knee disabilities were not a result of his active duty service and there is no competent or credible medical evidence or opinion to counter the VA opinion.

As to secondary service connection, the Board acknowledges he is service connected for foot and heel disabilities and is diagnosed with bilateral chondromalacia of the knees. Thus, he fulfills the first and second requirements for secondary service connection. 38 C.F.R. § 3.310. However, the evidence of record does not support the finding of the third required element; specifically, that his current disabilities were (1) caused by, (2) the result of, (3) or aggravated by his current service-connected disabilities.

Here, the July 2020 VA examiner determined his bilateral knee disabilities were not caused by, the result of, or aggravated by his service-connected heel and foot disabilities. Specifically, the examiner determined "these are separate and distinct medical conditions. One condition does not have cause or have effect on the other." Moreover, the evidence of record does not contain any competent or credible medical evidence or opinion to counter the VA opinion.

Indeed, the only indication the Veteran's bilateral knee disabilities are related to active service or to a service-connected disability are the Veteran's own lay statements. Lay evidence may be competent to establish medical etiology or nexus (Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)), but VA can give lay evidence whatever weight to which it concludes the evidence is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this case, although the Veteran may believe his bilateral knee disabilities are related to active duty service or to a service-connected disability, he is not competent to make such determinations, which are medical in nature. See Jandreau, 492 F.3d at 1372. Such opinions require specialized training and knowledge and are matters which are not capable of lay observation. As such, the Board finds the Veteran's contentions are of little probative value and the VA opinion being supported by the evidence of record, medical rationale, and sound service connection principles is thus of greater probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 

In sum, the preponderance of the evidence is against finding the Veteran's bilateral knee disabilities are related to active service or to a service-connected disability. Hence, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. at 58; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. As such, the Veteran's claim for entitlement to service-connection for a bilateral knee disability to include as secondary to a service-connected disability is denied.

 

 

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Law Clerk, Tyler R. Masters

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.