Citation Nr: 21076583 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 19-14 771A DATE: December 27, 2021 ORDER Entitlement to an initial rating greater than 30 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a disability rating greater than 30 percent for a right knee disability status post total knee replacement is remanded. Entitlement to a disability rating greater than 10 percent for a left knee disability is remanded. Entitlement to a disability rating greater than 10 percent for right hip osteoarthritis is remanded. Entitlement to an initial compensable rating for right hip limitation of flexion is remanded. Entitlement to a disability rating greater than 10 percent for a lumbar spine disability is remanded. Entitlement to a disability rating greater than 10 percent for right lower extremity radiculopathy is remanded. Entitlement to a disability rating greater than 20 percent for a left ankle disability, status post total ankle replacement and gouty arthropathy, is remanded. FINDING OF FACT The record evidence shows that, throughout the appeal, the Veteran's PTSD was manifested by symptoms productive of no worse than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. CONCLUSION OF LAW The criteria for an initial rating greater than 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty form September 1966 to September 1970. This appeal to the Board of Veterans' Appeals (Board) is from a May 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in June and December 2020. The Veteran also appealed the denial of a total disability rating based on individual employability (TDIU). A September 2021 rating decision granted the TDIU claim effective the date of the increased rating claims. Thus, this claim is no longer before the Board. See Grantham v. Brown, 114 F .3d 1156 (1997). Increased Rating 1. Entitlement to an initial rating greater than 30 percent for PTSD In February 2018, the Veteran reported that his PTSD was manifested by angry outbursts, an inability to sleep, intrusive thoughts, flashbacks, and nightmares. On March 2018 VA examination, the Veteran's symptoms were reported as depressed mood, anxiety, chronic sleep impairment, and disturbance of motivation and mood. He was both cooperative and pleasant and attempted to answer all of the examiner's questions to the best of his ability. The examiner indicated that while the Veteran had a PTSD diagnosis, the symptoms were not severe enough to either interfere with occupational and social functioning or to require continuous medication. Regarding his current psychosocial and marital functioning, the Veteran did not report any significant difficulties in his marriage. He had two prior marriages; the first marriage lasted 11 months and the second marriage lasted 14 months. The second marriage did not last secondary to his alcohol consumption and he had difficulty getting along with that wife. The Veteran had been married to his current wife since 1993. He described the marriage as good. Occupationally, he reported that he had no difficulty functioning after service and had worked for 27 years as a Probation Officer. Throughout that time, he received various promotions and had no difficulty with his employer. He did not report receiving any treatment for mental health issues past or present, was not on any psychotropic medications, had no suicide or homicidal ideation, and had no history of inpatient psychiatric hospitalizations. The Veteran noted concerns and feelings of fear and lack of control that stemmed back to his time in the military, and these feelings and emotions were ongoing, but they were not severe enough to require treatment. See March 2018 C&P Exam. In May 2018, the Veteran's wife wrote that the Veteran was always polite and stayed in control of his emotions in most situations that required his attention; however, he had sudden outbursts of anger over small things. He would explode if he was in line and someone took out a checkbook or coupons to pay for their food. He would leave the store ranting and leave her and the cart behind. His outbursts were never directed at anyone, but sometimes inanimate objects were tossed or slammed. This always happened with small things, but when it came to dealing with major and important matters, he was great. His tantrums were almost daily issues and it was like everyone was out to get him. See May 2018 Buddy/Lay Statement. In May 2019, he expressed that the VA examination was not consistent with his symptoms and that his disability should be assigned a 70 or 100 percent rating. Private treatment records in May 2019 and December 2020 showed the Veteran was negative for anxiety, depression, and insomnia. In August 2020, he was afforded a second VA examination. The only symptom noted was depressed mood, and the clinician indicated the Veteran's PTSD was manifested by symptoms productive of 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. The Veteran reported that he and his wife had been married 27 years and he described the relationship as good. She talked to him about his fits of anger and impatience and she sometimes got angry with him. They did not have children and his closest friend died a while ago. He had a history of getting depressed, furious, anxious, and angry when having intrusive memories. He also had infrequent bad dreams, flashbacks in the past two or three months, and a markedly diminished interest or participation in significant activities over the past two to three years. Good times were often ruined by intrusive thoughts. He went back and forth between feeling anxious and angry and could not have positive emotions because he knew they would be ruined. The Veteran did not have patience and his wife stated that he flew off the handle over simple things, and he was almost at the point where he did not want to drive. He perceived problems with concentration as boredom, low mood, and waiting for intrusive thoughts to come. He did not have any significant sleep disturbance. On examination, the Veteran's attention and concentration were attentive and alert, his mood was frustrated, and his affect was neutral. He had a full range of emotion, and judgment and insight within normal limits. There was no irregularity in speech, thought, or thought process. See August 2020 C&P Exam. The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to an initial rating greater than 30 percent for PTSD. Having reviewed the evidence, the Board finds that the Veteran's PTSD did not meet or more closely approximate the criteria for a rating of 50 percent or greater at any time during the appeal since it is not productive of occupational and social impairment with reduced reliability and productivity. Based on statements from the Veteran and his wife and the August 2020 VA examination, his angry outbursts are the most significant PTSD symptom that affected his social and occupational functioning. According to her statement, this happened almost daily, but it only occurred when he was bothered by small matters. At those times, he did not direct his anger toward any person. She also indicated that in most situations his behavior and demeanor were good. Thus, the Board finds that his episodic angry outbursts would most likely result in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Regarding the Veteran's reported inability to sleep and nightmares, the record does not indicate that they would have any significant impact on his ability to function occupationally. The March 2018 VA examination noted chronic sleep impairment, but the examiner did not elaborate. The August 2020 VA examination was more specific and noted the Veteran had only occasional bad dreams and that his sleep disturbance was not significant. Chronic sleep impairment was not found. The private treatment records also noted he did not have insomnia. The Veteran's March 2018 statement also noted intrusive thoughts. While the March 2018 VA examination noted he had issues with this, no information was reported regarding the impact of those thoughts. The August 2020 VA examination was more detailed and indicated that the Veteran's intrusive thoughts resulted in feeling depressed, furious, anxious, and angry. The Veteran mainly reported that these memories interfered with his ability to have a good time and enjoy himself. Although he also associated it with problems concentrating, the psychologist indicated that the Veteran's concentration issues were a perceived problem, and she observed no evidence of it during the examination. Thus, the Board finds that intrusive thoughts and memories did not have the frequency, severity, or duration to negatively impact him occupationally to a degree contemplated in a higher rating. The March 2018 VA examination indicated the Veteran's symptoms also included a depressed mood, anxiety, and disturbance of motivation and mood. The examiner stated that these symptoms were not severe enough to require treatment or medication. Even though the August 2020 VA examination also noted the Veteran had a depressed mood, this was his only symptom. And his private treatment records noted no evidence of depression or anxiety. Notably, his disturbance of motivation and mood is contemplated in the criteria for a 30 percent rating for his service-connected PTSD. For these reasons it is unlikely that those symptoms would contribute to occupational and social impairment with reduced reliability and productivity. The record also shows that he experienced a full range of emotions and the Veteran's judgment and insight were within normal limits. Although the Veteran believes his PTSD should be assigned a 70 percent or 100 percent rating, neither rating is supported by the evidence. He has not sought treatment for his service-connected PTSD. And nothing in his or his wife's statement suggests severe symptoms or significant impairment. In other words, there is no evidence upon which to rate his disability other than the limited medical records in the claims file. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 30 percent for his service-connected PTSD. In summary, the Board finds that the criteria for an initial rating greater than 30 percent for PTSD have not been met. REASONS FOR REMAND 1. Entitlement to a disability rating greater than 30 percent for a right knee disability status post total knee replacement, a disability rating greater than 10 percent for a left knee disability, a disability rating greater than 10 percent for right hip osteoarthritis, an initial compensable rating for right hip limitation of flexion, a disability rating greater than 10 percent for a lumbar disability, and for a disability rating greater than 20 percent for a left ankle disability, status post total ankle replacement and gouty arthropathy, is remanded. The Veteran contends that his service-connected right hip, bilateral knee, lumbar, and left ankle disabilities are more disabling than currently (or initially) evaluated. These claims essentially are being remanded due to the inadequacy of the March and May 2018 VA examinations. The clinician who examined the Veteran's right hip, knees, and lumbar spine disabilities in March 2018 stated that she could not state whether pain, weakness, fatigability, or incoordination significantly limited his functional ability with repeated use over time without speculating because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The Board finds such an explanation is inadequate. The bilateral knee examination also was deficient because the clinician stated that she could not perform passive range of motion or non-weight bearing and did not explain why. With regard to the lumbar spine, she stated the range of motion with non-weight bearing could not be performed and did not explain why. There was also a lack of specificity to some degree when the examiner noted that the lumbar spine had less movement than normal due to ankylosis, adhesions, etc. Given that this clinician also found no evidence of ankylosis, she either contradicted herself or offered a catch-all without identifying the actual cause for less movement than normal. In any event, the Board finds that this response is insufficient. Although a different clinician performed the May 2018 examination of the left ankle, she provided the same deficient responses as to why it would be speculative to comment on whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over time and the reason(s) why there was less movement than normal. 2. Entitlement to a disability rating greater than 10 percent for right lower extremity radiculopathy is remanded. Since VA lumbar spine examinations also evaluate radiculopathy, the issue of entitlement to a disability rating greater than 10 percent for right lower extremity radiculopathy is inextricably intertwined with the increased rating claim for the lumbar spine disability and also must be remanded. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). These matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for examination to determine the current nature and severity of his service-connected right hip disabilities. If possible, this examination should be conducted by a clinician other than the clinician who conducted the March 2018 examination. 3. Schedule the Veteran for examination to determine the current nature and severity of his service-connected left and right knee disabilities. If possible, this examination should be conducted by a clinician other than the clinician who conducted the March 2018 examination. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current nature and severity of his service-connected lumbar spine disability and service-connected right lower extremity radiculopathy. If possible, this examination should be conducted by a clinician other than the clinician who conducted the March 2018 examination. 5. Schedule the Veteran for examination to determine the current nature and severity of his service-connected left ankle disability. If possible, this examination should be conducted by a clinician other than the clinician who conducted the May 2018 examination. 6. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst, 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.