Citation Nr: 21006978 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 13-03 331A DATE: February 8, 2021 ORDER For the appeal period prior to October 23, 2014, a rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI) is granted. For the appeal period beginning October 23, 2014, a rating in excess of 70 percent for PTSD with TBI is denied. A rating in excess of 20 percent for left shoulder dislocation residuals is denied. A rating in excess of 10 percent for left knee degenerative joint disease (DJD) with limitation of motion is denied. A separate 10 percent rating, but no higher, for left knee instability is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the entire rating period on appeal, the Veteran’s PTSD and TBI has been productive of occupational and social impairment in most areas, but not total social impairment. 2. The Veteran’s left shoulder disability is manifested by infrequent episodes of recurrent dislocation of the scapulohumeral joint and guarding of movement only at shoulder level. Limitation of right arm motion to midway between the side and shoulder level is not shown. 3. The Veteran’s left knee disability is manifested by painful limitation in flexion, at worst, to 104 degrees with normal extension and without a meniscal condition or ankylosis. 4. The Veteran’s left knee disability is manifested by objective findings of instability. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no higher, for PTSD with TBI prior to October 23, 2014 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 70 percent for PTSD with TBI beginning October 23, 2014 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for a rating in excess of 20 percent for residuals, left shoulder dislocation are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5202. 4. The criteria for a rating in excess of 10 percent for DJD left knee with limitation of motion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5260. 5. The criteria for a separate 10 percent rating for instability of the left knee are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on duty in the Army from September 2005 to September 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In the January 2013 VA Form 9, the Veteran requested a Board hearing. The Veteran withdrew his request for a Board hearing in September 2013. The claims on appeal were last before the Board in June 2015 where they were remanded for additional development. Increased Rating PTSD with TBI Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. Service connection for PTSD was granted in a February 2011 rating decision and a 10 percent disability rating was assigned, effective September 14, 2010. An August 2017 rating decision assigned a 50 percent disability rating, effective September 14, 2010 and assigned a 70 percent disability rating, effective October 23, 2014. Upon review of the evidence of record, the Board finds that the Veteran has demonstrated a level of impairment consistent with the 70 percent criteria, and the Veteran’s symptoms are found to have caused occupational and social impairment in most of the areas throughout the rating period on appeal. The Veteran has been found to have depressed mood, anxiety, suspiciousness, sleep impairment, flattened affect, disturbance of motivation and mood, difficulty establishing relationships, impaired impulse control, anger issues, and intermittent inability to perform daily activities. The Veteran has also been noted to have some impairment in short-term memory. Notably, a private October 2014 psychiatric evaluation indicated that the Veteran’s psychiatric disability resulted in occupational and social impairment with deficiencies in most areas since service separation and “have continued through the date of filing for benefits.” The symptoms listed by the October 2014 private examiner are similar to those found on VA examinations conducted in August 2010 and August 2017 (specifically noting an inability to establish and maintain effective relationships ). The Board notes that some of the Veteran’s symptoms are specifically contemplated by the 70 percent rating criteria. Thus, resolving reasonable doubt in favor of the Veteran, a 70 percent evaluation is warranted for the appeal period prior to October 23, 2014. The Board has also considered whether the Veteran is entitled to an evaluation in excess of 70 percent for PTSD with TBI for the entire rating period on appeal. However, to the extent that any of the symptoms contemplated in the rating criteria for a 100 percent evaluation or symptoms of similar severity may be shown or argued, the Board finds that the Veteran’s disability has not been productive of total occupational and social impairment. Indeed, the Veteran has been shown to have some social relationships, including both romantic and familial. See October 2014 report from Dr. Henderson-Galligan. During the October 2014, it was further noted that the Veteran had been working for three months as a private investigator. 2018 VA treatment records show that the Veteran was enrolled in school for cyber security, which demonstrates at least some social capabilities. The Board emphasizes that a 100 percent disability evaluation requires both total social and occupational impairment. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). The evidence shows that the Veteran’s overall PTSD picture is already adequately contemplated by the 70 percent rating. The Veteran does experience disturbance of motivation and mood (depression and anxiety), and difficulty sleeping, but these symptoms are specifically contemplated in the 30, 50, and 70 percent rating criteria. The same is true with the Veteran’s near-continuous depression and anxiety, impaired impulse control (anger), and difficulty in establishing and maintaining relationships, which are all symptoms contemplated under the 70 percent rating criteria. Further, at no time during the appeal period have any examiners (private or VA) indicated that the Veteran’s psychiatric disability resulted in total social impairment. For these reasons, the Board finds that a rating in excess of 70 percent for PTSD is not warranted as the evidence does not show that the Veteran’s PTSD has resulted in total social impairment. Musculoskeletal System Disabilities When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Left Shoulder The Veteran’s residuals of left shoulder dislocation are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5202, for other impairment of the humerus. Disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203 and include ratings based on limitation of motion. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. See 38 C.F.R. § 4.69. Here, as the evidence shows that the Veteran is right-hand dominant. There his left shoulder is the minor extremity. Under Diagnostic Code 5200, which pertains to ankylosis of the scapulohumeral articulation, a 20 percent rating is warranted for favorable ankylosis with abduction to 60 degrees, a 30 percent rating is warranted for ankylosis which is intermediate between favorable and unfavorable, and a 40 percent rating is warranted where there is unfavorable ankylosis with abduction limited to 25 degrees from the side. Limitation of motion of the shoulder joint is rated under Diagnostic Code 5201. Under Diagnostic Code 5201 (minor side), a 20 percent rating is warranted for limitation of arm motion to shoulder level; a 20 percent rating is warranted for limitation of arm motion to midway between the side and shoulder level; and a maximum 30 percent rating is warranted for limitation of arm motion to 25 degrees from the side. 38 C.F.R. § 4.71a. Under Plate I of 38 C.F.R. § 4.71a, normal range of motion of the shoulder is forward elevation (flexion) and abduction to 180 degrees, and internal and external rotation to 90 degrees. Diagnostic Code 5202 provides ratings for other impairment of the humerus. Recurrent dislocations of the humerus at the scapulohumeral joint are rated as 20 percent for the minor shoulder. Fibrous union of the humerus is rated as 40 percent for the minor shoulder. Nonunion of humerus (false flail joint) is rated as 50 percent for the minor shoulder. Loss of head of the humerus (flail shoulder) is rated as 70 percent for the minor shoulder. Under DC 5203 for impairment of the clavicle or scapula, a 10 percent rating is assigned for malunion or for nonunion without loose movement. When there is nonunion with loose movement, a 20 percent rating is assigned. A 20 percent rating is also assigned when there is dislocation of the clavicle or scapula. As indicated above, the Veteran’s left shoulder disability is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a Diagnostic Code 5202 [impairment of clavicle or scapula]. Under Diagnostic Code 5202, the next higher rating (40%) is warranted fibrous union of the humerus. The Board carefully reviewed the available VA medical records, including the August 2010, August 2017, and August 2020 VA examination reports, and finds no evidence that the Veteran’s left shoulder disability has been characterized by fibrous union of the humerus, or nonunion (false flail shoulder), or loss of the humeral head (flail shoulder) during the period on appeal. The Board further finds that Diagnostic Code 5200 is inapplicable because there is no evidence of ankylosis of the Veteran’s left shoulder as required under Diagnostic Code 5200. Likewise, as the evidence does not show that the Veteran’s clavicle and scapula are impaired, the Board finds that Diagnostic Code 5203 is not applicable. With respect to Diagnostic Code 5201, the Board finds that a disability rating in excess of 20 percent is not warranted as the Veteran has not shown limitation of left shoulder motion to 25 degrees from the side. Instead, the Veteran’s range of motion has been found to be limited to, at worst 45 degrees. See August 2017 VA examination. During the August 2010 and September 2020 VA examinations, the Veteran’s left shoulder range of motion was limited to, at worst, 120 degrees, to include after consideration of repetitive use. However, the Veteran was still able to demonstrate range of motion that greatly exceeds the criteria for the next higher rating. The Board finds that the 20 percent rating currently assigned contemplates any functional impairment that the Veteran experiences in his left shoulder. In light of the above, the claim for a higher schedular rating for the Veteran’s left shoulder disability must be denied. In reaching this decision, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Knee The Veteran’s DJD of the left knee is evaluated under Diagnostic Codes 5003-5260. The relevant rating criteria include Diagnostic Code 5010, which instructs the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. For purpose of rating disability from arthritis, the elbow is considered a major joint. 38 C.F.R. § 4.45 (f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. VA’s General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. The Veteran contends that he is entitled to a higher rating because his disability is more severe than contemplated by the currently assigned rating. See April 2011 Notice of Disagreement. Based on review of the evidence, the Board finds that, the Veteran’s left knee instability warrants a separate 10 percent rating throughout the period on appeal. The August 2010 and August 2017 examination reports both found objective evidence of laxity of the medial and lateral ligaments following testing. The Veteran has also reported that his left knee occasionally “gives out.” The Board notes that Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). Because the Veteran has competently and credibly reported left knee instability, and because there is some objective evidence of lateral instability, the Board finds that a separate 10 percent rating is warranted for slight lateral instability for the rating period on appeal. Nonetheless, the Veteran’s left knee instability is not more accurately described as moderate. The most recent 2020 VA examination report found that the knee joint was normal on all stability tests. During the August 2017 VA examination, the Veteran was found to have some medial instability, but lateral instability was not indicated. The Board finds that the Veteran’s left knee complaints of “giving out” are best characterized as slight in nature. Next, the Veteran has already been afforded a 10 percent rating for painful motion of the left knee. Because the Veteran’s range of knee motion in flexion, to include during repetitive use testing and in consideration of flare-ups, has been no worse than 104 degrees (see August 2017 VA knee examination report), a rating higher than 10 percent is not warranted under DC 5260. Further, as noted in the VA knee examination reports discussed above, the Veteran has been able to fully extend the left knee; as such, a separate compensable rating under Diagnostic Code 5261 is also not warranted. For these reasons, a rating in excess of 10 percent under Diagnostic Code 5010-5260 is not warranted, nor is a separate rating for limited extension of the left knee under DC 5010-5261. The Board recognizes the Veteran’s reports of continued left knee pain, as explained in the VA examination reports of record. The Board considered this knee pain, as well as any additional limitations of motion due to pain (including difficulty with prolonged sitting, walking, climbing, kneeling, and bending). However, even considering additional limitation of motion or function of the knee due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the knee disability more nearly approximates the criteria for higher rating. Repetitive-use testing during the VA examinations discussed above showed no significant decreased range of motion in the left knee. Moreover, there is no evidence of any knee ankylosis, dislocated semilunar cartilage, or malunion of the tibia and fibula to support higher or separate ratings under DCs 5256, 5258, or 5262. Based on the foregoing, the Board finds that a separate 10 percent rating is warranted for slight lateral instability of the left knee for the rating period on appeal. The Board further finds that the weight of the evidence is against a grant of a rating in excess of 10 percent for painful motion associated with DJD of the left knee. To the extent any higher level of compensation is sought, the preponderance of the evidence is against these claims, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.§ 5107 (b); 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND TDIU The Board finds that additional development prior to adjudication of this claim. VA is obligated to obtain Social Security Administration (SSA) records if there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (2010). The record reflects that the Veteran has received SSA disability benefits; however, the Veteran’s SSA records have not yet been obtained. See June 2018 VA Treatment Records (the Veteran reported his income over the past month as $3000 from pension, benefits or social security for a total of $3000). The Board finds there is a reasonable possibility that any existing SSA records may be relevant to the Veteran’s claim for a TDIU. Thus, upon remand, any SSA disability benefits records should be obtained and associated with the record. The Veteran should also be requested to complete an updated VA Form 21-8940. In his 2017 TDIU application, the Veteran indicated that he last worked in February 2014; however, during the October 2014 private psychiatric evaluation, the Veteran stated that he had been working as a private investigator. VA treatment records also indicate that the Veteran was in the process of obtaining a degree in cyber-security. As it appears the Veteran’s work and educational history is not complete, a remand is necessary for the Veteran to submit an updated TDIU application (VA form 21-8940). The matters are REMANDED for the following action: 1. Obtain and associate with the record all records from the Social Security Administration pertaining to the Veteran concerning a claim for disability benefits, to include all evidence and copies of any disability determination. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Send the Veteran a VA Form 21-8940, formal claim for TDIU, for an updated response addressing his employment and educational history. 3. Thereafter, readjudicate entitlement to a TDIU. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, 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.