Citation Nr: 21007842 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-18 426 DATE: February 10, 2021 ORDER Entitlement to service connection for lumbar spine disability is denied. Entitlement to service connection for left knee disability, to include as secondary to lumbar spine disability, is denied. Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to September 17, 2019 is granted. FINDINGS OF FACT 1. The most probative evidence of record does not demonstrate that the Veteran’s lumbar spine disability is at least as likely as not related to an in-service event, injury, or disease. 2. The most probative evidence does not establish that the Veteran’s left knee disability is at least as likely as not related to an in-service injury, disease, or event or secondary to a service-connected disability. 3. For the entire appeal period, the Veteran’s PTSD reasonably manifested as occupational and social impairment with deficiencies in most areas. 4. Prior to September 17, 2019, the evidence reasonably shows that the Veteran’s service-connected disabilities render her unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine disability have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for service connection for left knee disability, to include as secondary to lumbar spine disability, have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 3. The criteria for a 70 percent rating, and no higher, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code (Code) 9411. 4. The criteria for a TDIU prior to September 17, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1977 to January 1981. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a video-conference hearing. Service Connection Generally, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease diagnosed after discharge, where all evidence, including that pertinent to service, establishes that the disease was incurred therein. 38 C.F.R. § 3.303(d). Service connection may also be granted for certain chronic diseases when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309; see Fountain v. McDonald, 27 Vet. App. 258; 38 C.F.R. § 3.309(a). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for lumbar spine disability The Veteran asserts that her current lumbar spine disability is due to her military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Although the Veteran has a current diagnosis of degenerative disc disease, and evidence shows that she complained of back pain during service, the preponderance of the evidence weighs against finding that the current lumbar spine disability began during service or is otherwise related to an in-service injury, event, or disease. The service treatment records (STRs) show the Veteran was seen for a complaint of low back pain in September 1980 after a 10-hour bus ride; however, during the December 1980 separation examination she denied any recurrent back pain and clinical evaluation of the back was normal. The earliest post-service documentation of a disability of her back is documented in 2004 treatment records related to a post-service back injury—23 years post service. Although the Veteran is competent to report having experienced symptoms of lumbar pain since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a chronic lumbar disability. The issues are medically complex, as it requires knowledge of musculoskeletal system. Further, the September 2012 VA examiner opined that the Veteran’s lumbar spine disability was less likely than not related to an in-service injury, event, or disease, including the one complaint of pain during service. The rationale was the Veteran’s complaint in service for back pain was acute and transitory. Further, there was no back disability found on the Veteran’s service separation examination. And, many years post-service, the Veteran was diagnosed with chronic lumbar disability that appears to be due to post-service events. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent opinion to the contrary. Considering all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran’s claim. Although she is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 2. Entitlement to service connection for left knee disability, to include as secondary to lumbar spine disability The Veteran asserts that her left knee disability is due to service or in the alternative secondary to her lumbar spine disability. Regarding secondary service connection, as noted above service connection for lumbar spine disability is not warranted, thus the secondary service connection claim lacks legal merit, and the appeal for the left knee disability claim is denied based on this theory. See 38 C.F.R. § 3.310. Regarding direct service connection, the STRs show no complaints of or treatment for a left knee disability. Further, during the June 2019 Board hearing, the Veteran indicated that she was not seen in service for any knee complaints. She indicated that she believed her left knee disability was due to her chronic lumbar spine disability. The Board concludes that, although the Veteran currently complains of left knee pain, the preponderance of the evidence weighs against finding that the claimed left knee disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. § 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Indeed, post-service treatment records show treatment for left knee pain beginning in 2010 after she tripped over her puppy. There is no evidence in the post-service treatment records that her left knee disability is related to an in-service event, injury, or disease. Although the Veteran is competent to report having experienced symptoms of left knee pain since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a left knee disability. The issue is medically complex, as it requires knowledge of the musculoskeletal system and interpretation of complicated diagnostic medical testing. Moreover, concurrent treatment records do not show a left knee disability prior to 2010. Considering all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran’s claim. As noted above, although she is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 3. Entitlement to a 70 percent rating for PTSD Disability evaluations are determined by comparing a veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran contends that her PTSD is more severe than contemplated by her currently assigned 50 percent rating. Her PTSD is rated under Code 9411. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned for 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is assigned for 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 that is 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent disability 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; and memory loss for names of close relatives, or for the Veteran’s own occupation or name. 38 C.F.R. § 4.130. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. In determining whether a 70 percent rating is warranted, the focus is on whether there are deficiencies in most of the areas of work, school, family relations, judgement, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1 (2001). Although a veteran’s symptomatology is the primary consideration in assessing veteran’s disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for the 70 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); 38 C.F.R. § 4.13. During October 2012 VA examination, the Veteran reported that she experiences depressed mood and mood disturbance that is constant. The examiner noted PTSD symptoms include depressed mood, anxiety, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, or recent events. The examiner indicated that the Veteran’s PTSD manifested as 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. In a July 2013 private mental status examination, the examiner found that the Veteran was currently isolated, fearful, paranoid, and skittish around other people. The Veteran was found to have memory defects. During the August 2015 VA examination, the examiner indicated that symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. Mental status examination revealed the Veteran was oriented to all spheres. Her appearance and hygiene were adequate. Her mood was mildly dysphoric with congruent affect. Her thought processes were linear and there was no evidence of a thought disorder. She denied any suicidal ideation or homicidal ideation plans or intent. Her attention and concentration appeared intact. Her intelligence is thought to be in the average range. The examiner found that the Veteran’s PTSD manifest as occupational and social impairment with reduced reliability and productivity. During September 2019 VA examination, the examiner indicated that the Veteran reports some meaningful relationships with family and treatment providers. Her work impairment was previously noted to be specific to her physical health following a fall, prior to the fall. The examiner notes now that secondary to symptoms of isolation and increased sensitivity to interactions with others the Veteran’s PTSD would likely preclude her from working, as she reported she is less able to leave her apartment and interacts with very few people in person. The PTSD diagnosis accounts for her depressive symptoms as well as the anxiety she experiences; therefore, separate or additional diagnoses are not necessary. She currently presents with symptoms of PTSD with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. At the present time, her symptoms of service-connected PTSD are impairing her ability to independently seek and maintain consistent work secondary to increased hypervigilance, startle response, and suspicion and paranoia of others. Her symptoms presently impair her ability to go out and leave her apartment, and impair her ability to deal with all others except her family members and the treatment providers at the VA, which would make it extremely difficult for her to obtain employment much less go to a work environment and interact with others. The examiner concluded that at the present time, it seems the Veteran is most suited for work she could do from her own home which does not require her to leave her apartment or engage with others on an in-person basis. During an October 2019 disability benefits questionnaire, the Veteran reported that she did not have any friendships and never goes out of the house. The private examiner reviewed the claims file to include all of the Veteran’s previous VA examinations as well as her treatment records and indicated that throughout the appeal period, the Veteran has exhibited symptomatology that includes anxiety; panic attacks more than once a week; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; suicidal ideation; and persistent delusions or hallucinations. Upon careful review of the evidence of record, the Board finds that the Veteran’s PTSD symptoms, for the entire appeal period, most closely approximate those warranting a 70 percent rating. In reaching this conclusion, the Board has considered both the medical and lay evidence describing the Veteran’s symptoms. The competent and credible evidence, that includes VA examination reports and ongoing VA treatment records, establishes that the Veteran’s PTSD was manifested by symptoms such as irritability; difficulty controlling her anger; intermittent suicidal ideation; insomnia; nightmares; and avoidance behaviors, including social withdrawal, feelings of detachment, and loss of interest in activities. She reported experiencing a depressed mood; intrusive memories related to his military service, including flashbacks; hypervigilance; and an exaggerated startle response. Further, she reported never leaving her house. Collectively, these symptoms are of the type, extent, severity, and/or frequency indicative of occupational and social impairment in most areas of the Veteran’s life, including work, social relations, judgment, thinking, or mood. As such, the Board finds that the preponderance of the evidence supports the award of a 70 percent rating for the entire appeal period. The Board finds, however, that the Veteran’s PTSD symptoms do not more approximately reflect total occupational and total social impairment at any point during the appeal. In sum, a 70 percent rating, but no higher, is warranted for the appeal period. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 4. Entitlement to a TDIU prior to September 17, 2019 During the June 2019 hearing, the Veteran indicated that her service-connected disabilities impacted her ability to engage in gainful employment. She was informed to complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Board observes that the Veteran completed and submitted such form on September 17, 2019. In a December 2019 rating decision, the RO granted the Veteran’s TDIU claim effective from September 17, 2019, the date that the RO received the Veteran’s claim. Giving the Veteran the benefit of the doubt, the Board finds her service-connected disabilities have rendered her unable to secure and follow a substantially gainful occupation prior to September 17, 2019. A Veteran will be entitled to a TDIU upon establishing that she is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from her service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. For the entire appeal period, the Veteran’s combined disability rating of at least 80 percent. And thus, she has met the schedular criteria for eligibility to be considered for TDIU under the provisions of 38 C.F.R. § 4.16(a). After careful review of the record, the Board finds that prior to September 17, 2019, the Veteran experienced functional limitations due to service-connected PTSD, endometriosis, and gastroesophageal reflux disease that preclude substantially gainful employment. To the extent that the record suggests that the Veteran could perform the physical requirements of sedentary type employment, the Board finds that such employment in this case would be no more than marginal in view of the Veteran’s educational background and work experience. See Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994) (TDIU may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran’s disability does not prevent him from performing work that would produce sufficient income to be other than marginal). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.