Citation Nr: 21072889 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-40 630 DATE: December 6, 2021 ORDER Entitlement to service connection for bilateral wrist arthritis is denied. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to December 21, 2015 is denied. Entitlement to a rating of 70 percent, but not higher, for PTSD is granted from December 21, 2015. FINDINGS OF FACT 1. The Veteran does not currently have a diagnosis of arthritis in either the left or right wrist. 2. Prior to December 21, 2015, the evidence shows the Veteran's PTSD was manifested by, at worst, occupational and social impairment with reduced reliability and productivity due to symptoms such as sleep disturbance and difficulty in establishing and maintaining effective work and social relationships. 3. From December 21, 2015, the evidence shows the Veteran's PTSD causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral wrist arthritis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for a rating in excess of 50 percent for PTSD have not been met prior to December 21, 2015. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for a rating of 70 percent, but no greater, for PTSD have been met beginning December 21, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1991 to November 1996. These matters were previously remanded by the Board of Veterans' Appeals (Board) in December 2020 for consideration of additional evidence by the agency of original jurisdiction (AOJ). The AOJ has considered the additional evidence and issued a Supplemental Statement of the Case (SSOC). The Board notes that some issues, including entitlement to service connection for left wrist chronic 3rd/4th extensor digitorum tear at lunocapitate joint status-post arthroscopy, have been granted in full during the course of the appeal and have not returned to the Board for adjudication. (Service connection is already in effect for this diagnosis in the right wrist.) The remaining claims for increased rating of PTSD and service connection for bilateral wrist arthritis have returned to the Board and are adjudicated below. 1. Entitlement to service connection for bilateral wrist arthritis The Veteran contends that he has bilateral wrist arthritis related to active service, or as a result of or aggravated by service-connected conditions. After thorough review of the evidence of record, the Board finds the Veteran does not have diagnosed arthritis disability in either the right or the left wrist. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §1110. Generally, the evidence must show: (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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38C.F.R. §3.303(d). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. On VA examination in September 2016, no arthritis was noted, however, there had not been imaging evidence available for review. A radiology report from January 2021 indicates there is no finding of arthritis in either the left or right wrist. On VA examination in February 2021, the Veteran's wrist conditions were confirmed, and the examiner stated there was no evidence of arthritis. As a threshold matter, the Veteran must have a current disability in order to claim service connection. Here, there is no objective medical evidence of diagnosed left or right wrist arthritis during the appeal period. While the Board is sympathetic to the Veteran's symptoms, without a diagnosis, there is no basis for service connection. Additionally, the Board notes that the Veteran does have separately diagnosed left and right wrist disabilities that have been service-connected. The Veteran has not argued otherwise or provided any medical evidence to the contrary. Given the foregoing, the Board finds that the medical evidence outweighs the Veteran's contentions. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In reaching this conclusion, the Board has considered the Veteran's contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue of arthritis in this case, it falls outside the realm of common knowledge of a lay person and requires radiological evidence, which is not present. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report his current symptoms, this is not the type of condition that is amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that specific findings are needed to properly assess and diagnose arthritis and determine its etiology. Jandreau; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In sum, the evidentiary requirement of demonstrating a current disability has not been satisfied. There is simply no evidence that wrist arthritis has actually been diagnosed at any time during the appeal period in either wrist. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a diagnosis, the claim for service connection fails. Brammer v. Derwinski, 3 Vet. App. 223 (1992). There is no doubt of material fact to be resolved in the Veteran's favor, and the claim for service connection for bilateral wrist arthritis must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder The Veteran's PTSD is rated 50 percent disabling throughout the appeal period. He contends that a higher rating is warranted. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Although a disability must be considered in the context of the whole recorded history, including service treatment records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If a disability has undergone varying and distinct levels of severity throughout the claims period, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. A critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran's service-connected PTSD is rated 50 percent disabling under Diagnostic Code 9411. A 50 percent rating is warranted if 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned with an 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); and inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent is warranted 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; 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. "[A] veteran may only qualify for a given disability rating under [38 C.F.R. § 4.130] by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The United States Court of Appeals for Veterans Claims (Court) has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). On VA examination in May 2014, the Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, impaired abstract thinking, disturbances of motivation or mood, 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 determined the Veteran did not appear to pose a threat to self or others. The examiner found the Veteran's PTSD caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. On VA examination in December 2015, the Veteran's symptoms were depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation or mood, and suicidal ideation. The examiner determined the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity. VA treatment notes from March 2019 indicate the Veteran's PTSD was stable. The Veteran's PTSD symptoms prior to December 2015 align with a rating of 50 percent. Notably, at the May 2014 examination, the Veteran experienced flattened affect, difficulty in understanding complex commands, and impairment of short- and long-term memory. These are specifically listed in the regulations for a 50 percent rating, and reflect a degree of social and occupational impairment consistent with that rating. A higher rating of 70 percent requires more severe symptoms, such as obsessive rituals, impaired impulse control, and neglect of appearance. While the symptoms listed in the regulation are not a finite list of manifestations that would warrant the assignment of a 70 percent rating, it is clear from the medical records and, in particular, the May 2014 examination, that the Veteran's symptoms did not rise to the level of severity required for a 70 percent rating prior to the December 2015 VA examination. From December 2015, the evidence shows that the Veteran's PTSD symptoms worsened to include suicidal ideation, which is of a severity warranting a 70 percent rating, but not higher. See Bankhead, 29 Vet. App. 10, 19 (2017). A higher rating of 100 percent requires total social and occupational impairment. The evidence does not establish this degree of social or occupational impairment, or the symptoms consistent with that rating (e.g., delusions or hallucinations, inability to attend to self-care, being a persistent danger to self or others). The evidence also does not establish that the Veteran is unable to hold a job due to his PTSD. Therefore, a rating of 70 percent, but not higher, is warranted beginning December 21, 2015. TDIU The Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total disability rating due to individual unemployability (TDIU) due to service-connected disability either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is thus part of the claim for an increased rating. The Board finds, however, there is no evidence that the Veteran is unemployed or underemployed as a result of his service-connected conditions, nor has the Veteran asserted as such. Therefore, an award of TDIU is not appropriate in this case. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.