Citation Nr: 21012805 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 12-07 945 DATE: March 5, 2021 ISSUES 1. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease (DJD) of both knees prior to November 18, 2013. 2. Entitlement to a disability rating in excess of 10 percent for DJD of the left knee from November 18, 2013. 3. Entitlement to a disability rating in excess of 10 percent for DJD of the right knee from November 18, 2013. 4. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) from August 12, 2009, to October 16, 2016. 5. Entitlement to a disability rating in excess of 70 percent for PTSD from October 17, 2016. ORDER Entitlement to an initial rating of 70 percent, but no higher, for PTSD is granted from August 12, 2009, to October 16, 2016. Entitlement to a disability rating in excess of 70 percent for PTSD from October 17, 2016, is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for DJD of both knees prior to November 18, 2013, is remanded. Entitlement to a disability rating in excess of 10 percent for DJD of the left knee from November 18, 2013, is remanded. Entitlement to a disability rating in excess of 10 percent for DJD of the right knee from November 18, 2013, is remanded. FINDINGS OF FACT 1. From August 12, 2009, to October 16, 2016, the Veteran’s PTSD more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. Throughout the pendency of this appeal, total occupational and social impairment has not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent for PTSD, but not higher, have been met from August 12, 2009, to October 16, 2016. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a disability rating in excess of 70 percent for PTSD have not been met or approximated. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training from January 1989 to April 1989; and active duty from March 2003 to September 2003 and from January 2005 to July 2006. This matter comes before the Board of Veterans’ Appeals (Board) from April 2011 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, as well as an October 2014 rating decision from the St. Petersburg, Florida RO. In March 2017 the Veteran was afforded a videoconference hearing before the undersigned. A copy of the transcript is of record. When this case was most recently before the Board in May 2019, it was remanded in part for additional evidentiary development. It has since returned to the Board for further appellate action. The Board finds that there has been substantial compliance with the remand directives in regards to the claim for PTSD, and the case has been properly returned to the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the pendency of this appeal, in a June 2019 rating decision, entitlement to a total disability evaluation based upon individual unemployability (TDIU) was granted effective August 2, 2018, the day following the date the Veteran last worked. In a December 2020 rating decision, service connection for left femoroacetabular impingement (FAI) (abduction), and service connection for left FAI (flexion) was granted. As such, these issues are no longer before the Board. In a December 2020 rating decision, the evaluation of PTSD was increased to 50 percent effective August 12, 2009, the date of service connection. The evaluation of PTSD was continued as 70 percent disabling effective October 17, 2016. This did not satisfy the Veteran’s appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C.A. § 7107 (a)(2) (West 2014). VA’s Duty to Notify and Assist The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Rating Claim Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (2002); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating a mental disorder, the rating agency shall 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; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. Id. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran’s service-connected PTSD. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board notes that, when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria are as follows. A 30 percent disability evaluation is warranted for 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted 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; difficulty in establishing effective work and social relationships. A 70 percent rating is warranted 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 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); inability to establish and maintain effective relationships. A 100 percent rating 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; 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 “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30 percent evaluation from a 50 percent evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. PTSD From August 12, 2009, to October 16, 2016 Historically, service connection for PTSD was granted with an evaluation of 30 percent effective August 12, 2009. In a December 2020 rating decision, the evaluation of PTSD was increased to 50 percent effective August 12, 2009, the date of service connection. The Veteran was afforded a VA examination in March 2011 in which he reported taking anti-depressants and having individual psychotherapy. His affect was noted as constricted and mood was depressed. He reported erratic sleep with nightmares and feeling tired during the day. His symptoms were noted to include increased arousal with sleep disturbances, irritability or outbursts of anger, hypervigilance, exaggerated startle response, clinically significant distress or impairment in social/occupational/or other important areas of functioning. It was noted that the Veteran was not as engaging in activities, was very distant from family, had marital problems, isolated, was very irritable, did not show emotion, was impatient, and was very vigilant in public places. The examiner found occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran submitted a March 2011 VA social history questionnaire in which he noted having verbal fights with his spouse and that the relationship was rocky. He reported having thought about suicide and even had a plan. He reported that his boys loved him but kept their distance from him and were sometimes fearful of him. VA treatment records during this time period are replete for complaints of sleep disturbances, fatigue, and martial problems. A March 2011 VA treatment note showed that the Veteran lost his business due to his difficulties coping with stress. The examiner noted that the Veteran’s palms were covered in grease/oil from working in a tire ship. The Veteran’s spouse submitted a statement in August 2013 in which she attested to his symptoms to include avoidance, sleep disturbances with nightmares, lack of participation with the family, and martial problems. The Board notes that his sons also submitted a statement in May 2014 attesting to the Veteran’s symptoms to include nightmares, flashbacks, and temper. The Veteran was afforded a VA examination in May 2014 in which his symptoms were reported to include avoidance, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, hypervigilance, and exaggerated startle response. The examiner found 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 described his relationship with his family as "strained." The examiner noted that his interpersonal style was defensive. The Veteran reported passive ideation "on a daily basis" thoughts of self-harm that were reported to be of a reduced intensity. The Veteran stated that these thoughts were that he would be better off dead. He reported four to five past suicide attempt; the last one was eight months prior by overdose. The examiner stated that the PTSD symptoms described caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. In December 2014 the Veteran submitted a statement, detailing two recent encounters with police officers in which he was beaten and on the second occasion was taken to the psychiatric ward for a stay overnight as it was reported that the he threatened to blow up a building. (The Veteran denied that he made this statement.) After carefully reviewing the evidence of record, the Board concludes that from August 12, 2009, to October 16, 2016, a rating of 70 percent, but no higher, is warranted. Review of the evidence of record shows that the Veteran’s PTSD caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. He had suicidal ideation with four or five prior attempts; impaired impulse control (such as unprovoked irritability with periods of violence) as evidenced by his interactions with police officers; some neglect of personal appearance and hygiene as evidenced by the grease/oil on his palms during a VA visit; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. These symptoms more nearly approximate the level of severity contemplated by the higher, 70 percent rating. PTSD From October 17, 2016 The Veteran was afforded a VA examination on October 17, 2016, in which the examiner found occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported domestic violence occurring in the home perpetrated by him towards his spouse, that he had strained relationships with his children due to his irritability and related that they tend to avoid him when possible. He reported that he had limited social interactions and has few hobbies or leisure pursuits. He denied having any friends. The Veteran’s symptoms were noted to include irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects. The examiner noted that the Veteran presented as guarded, hesitant, and apprehensive. The Veteran reported ongoing difficulty handling his anger in an appropriate manner, had a very low frustration tolerance, and had decreased patience with others. He indicated that he had been physically violent with his wife, approached other motorists and become verbally aggressive, and would be easily irritated and yell at his children. The examiner noted that the Veteran had averted eye contact, impoverished/soft speech, dysphoric mood, constricted affect, had inappropriate behavior of banging his head against the wall three times per week out of frustration. The Veteran reported chronic suicidal ideation with plan of shooting himself or walking in front of a train but denied intent. The Veteran and his spouse testified before the undersigned in March 2017 as to his symptoms to include agitation, prior suicide attempts, lack of a relationship with his spouse, and hypervigilance. The Veteran also submitted statements from his employer and son in March 2017 attesting to his symptoms. The Veteran stated in September 2017 that he lost his job due to having PTSD. The Veteran was afforded a VA-contracted examination in January 2018 in which the examiner found occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran reported that his marriage was suffering tremendously, he was angry, sullen, and there had been domestic violence in the marriage. He reported that he was often verbally abusive to his spouse and children. He reported being suicidal as recent as October 2017. He reported that he was involved in couples therapy and was prescribed medication. The examiner noted that the Veteran was alert and oriented, had restricted affect, depressed mood, hygiene and grooming were adequate, speech and memory were intact, judgment and insight were somewhat impaired. The Veteran was afforded a VA-contracted examination in April 2019 in which he reported anger/irritability issues which directly and negatively impacted his social, occupational, and familial relationships. The Veteran reported chronic sleep difficulties which left him feeling not well rested most days, that his motivation to engage with others was minimal, and that he has had no sex drive for years. Symptoms recorded included panic attacks occurring more than once weekly, chronic sleep disturbances, irritability and anger. The examiner noted that the Veteran had intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). A review of the evidence does not show that the Veteran’s symptoms have approximated the level of disability contemplated by the criteria for a 100 percent rating for PTSD at any point during the appeal period, or indeed for any rating in excess of 70 percent. The evidence does not reveal that the Veteran experienced such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The Board notes that the VA-contracted examiner in April 2019 found intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); however, the Veteran’s symptoms have not as a whole been on par with the level of severity required for a 100 percent rating. Consequently, the criteria for a rating in excess of a 70 percent, including that necessary for a 100 percent rating, have not been met. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than the assigned ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition to the medical evidence above, the Board has considered the lay evidence in the form of the Veteran’s correspondence and testimony. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran full competence and credibility, nothing in the statements shows impairment more closely approximating the criteria for higher staged ratings. REASONS FOR REMAND In response to the Board’s remand, the Veteran was afforded a VA-contracted examination in September 2020 in which physical examination showed objective evidence of pain on passive range of motion testing of the left knee, pain on non-weight bearing testing of the left knee, pain on passive range of motion testing of the right knee, and pain on non-weight bearing testing of the right knee; however, range of motion in degrees was not provided.     In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant’s joint disability and account for painful motion.  However, compelled by § 4.59’s place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.      As also relevant, a more recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id.      As the September 2020 examination report did not provide all of the information specified by Correia and Sharp, the claim must be remanded for new VA examination to obtain the information necessary to properly adjudicate this claim.      The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination by an examiner with appropriate expertise to determine the current degree of severity of his service-connected knee disabilities. The electronic claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. All testing deemed necessary must be conducted and results reported in detail. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran’s knees, i.e., the extent of the Veteran’s pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is “yes,” the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment. A full and complete rationale for any opinions expressed is required. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.