Citation Nr: 21013010 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-34 502 DATE: March 8, 2021 ORDER Entitlement to service connection for a left wrist condition is denied. Entitlement to service connection for a right wrist condition is denied. Entitlement to service connection for a right hand condition is denied. Entitlement to a rating greater than 50 percent for a generalized anxiety disorder is denied. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right knee disability, to include as due to a service-connected left knee disability is remanded. Entitlement to service connection for a left ankle disability, to include as due to a service-connected right ankle disability is remanded. Entitlement to an initial rating greater than 10 percent for a left knee disability is remanded. Entitlement to an initial rating greater than 10 percent for a right ankle disability is remanded. FINDINGS OF FACT 1. The competent and credible evidence of record does not show a current diagnosis for a left wrist condition. 2. The competent and credible evidence of record does not show a current diagnosis for a right wrist condition. 3. The competent and credible evidence of record does not show a current diagnosis for a right hand condition. 4. The severity, frequency, and duration of the Veteran’s anxiety symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left wrist condition have not been met. 38 U.S.C. §§ 1110 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a right wrist condition have not been met. 38 U.S.C. §§ 1110 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a right hand condition have not been met. 38 U.S.C. §§ 1110 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to a rating greater than 50 percent for a generalized anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1996 to August 2000. The claim was previously before the Board in June 2019 when it was remanded for further development. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for a left wrist condition 2. Entitlement to service connection for a right wrist condition 3. Entitlement to service connection for a right hand condition The Veteran contends that he has a left and right wrist disability and right hand disability that was incurred during service as a martial arts instructor. 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. The Board concludes that the Veteran does not have a current diagnosis of a left wrist, right wrist or right hand condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). The Veteran’s service treatment records (STRs) to include his examination report and Report of Medical History form completed at separation, are silent for any complaints, treatment or diagnoses for a bilateral wrist and right hand conditions during active service. The Veteran was given a VA examination in December 2019 for his right and left wrists. After examining the Veteran’s records and wrists, the examiner opined that the Veteran does not have a current diagnosis associated with any claimed condition. The Veteran was also given a VA examination for his right hand condition in December 2019. During the examination, the Veteran reported that he sprained his “pinky” finger as well as right hand pain during service. The Veteran attributed his right hand condition to doing martial arts training while in service. However, after examining the Veteran’s right hand, the examiner opined that the Veteran does not have a current diagnosis associated with any claimed condition. Although lay persons are competent to provide opinions on some medical issues, whether the Veteran’s left and right wrist and right hand conditions have a current diagnosis is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In summary, the evidence of record does not show any competent or credible evidence that the Veteran has a current diagnosis for left and right wrist or a right hand conditions. Accordingly, the Board finds that the preponderance of the evidence demonstrates that the Veteran is not entitled to service connection for a left and right wrist conditions or a right hand conditions. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application. 4. Entitlement to a rating greater than 50 percent for a generalized anxiety disorder The Veteran contends that his generalized anxiety disorder warrants a rating greater than 50 percent. The Veteran appealed his initial 30 percent rating for anxiety in an August 2015 notice of disagreement. In a July 2020 rating decision, the Veteran’s initial rating for anxiety was increased to 50 percent. Since the highest rating was not granted for the entire appeal period, the claim is back before the Board. Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability greater than 50 percent. 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 when symptoms such 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 cause total occupational and social impairment. At an August 2018 VA examination, the Veteran reported that he had been in a relationship for two years and they were discussing getting married. His family lives nearby and he sees them once a week. The Veteran reported that he was working; however, when his anxiety becomes worse he takes time off because his concentration is affected by intolerable physical anxiety symptoms. He estimated that on average, he takes off 4 days per month; however, he took approximately one month off earlier in 2018. The August 2018 examiner diagnosed generalized anxiety disorder and panic disorder and said the symptoms could not be differentiated. The examiner specifically identified symptoms of depressed mood; anxiety; suspiciousness; 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; disturbances of motivation and mood, and; difficulty adapting to stressful circumstances, including work or a work like setting. The examiner observed that the Veteran was alert and oriented in all spheres. He had a deep frown on his face and was rubbing his head in the session. Speech was reduced in volume, normal in speed and goal-directed. The Veteran was looking around the room nervously, but there was no evidence of thought disorder, hallucination or delusion. The August 2018 VA examiner summarized the Veteran’s level of occupational and social impairment as with reduced reliability and productivity. On VA examination in October 2019, the Veteran reported that he was fully employed and has enjoyed a successful career. He said there have been periods when he experienced mild to moderate impairment in his overall occupational functioning that he attributed to exacerbations of chronic symptoms of his diagnosed anxiety disorder. He said there had never been significant impairment in his occupational functioning during any of those symptomatic episodes. The Veteran described his social functioning as reflecting only periodic, mild impairment. He said his successful social interactions include his regular interactions with his wife and parents. He said he and his wife have a close, loving relationship and that she remains his primary source of social support. The October 2019 examiner diagnosed generalized anxiety disorder and specifically identified symptoms of suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, and; difficulty in adapting to stressful circumstances, including work or a worklike setting. On mental status examination, the Veteran’s speech production was within normal limits in terms of pitch, pace, and volume. Content of his speech indicated reality-based, concise, adaptive ideations and no evidence of formal thought disorder or frank psychotic thinking was observed. His skills in insight and judgment were assessed as intact; his skills in concentration and memory were found to be mildly impaired in areas assessed. The Veteran denied a history of experiencing suicidal or homicidal ideations. The October 2019 examiner characterized the Veteran’s 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 Board finds that the criteria for a higher 70 percent are not met or more closely approximated. VA examiners identified some of the symptoms contemplated by a 70 percent rating (near continuous panic or depression affecting the ability to function independently, appropriately and effectively, and; difficulty adapting to stressful circumstances, including work or a work like setting); however, the Board finds the severity, frequency and duration of the Veteran’s symptoms more closely approximated the symptoms contemplated by a 50 percent rating. See 38 C.F.R. § 4.126. The Veteran has described the effect of periodic exacerbations of his anxiety; however, the frequency and severity of those exacerbations do not approximate “deficiencies in most areas.” The Veteran has continued to be employed and have relationships with his wife and family. Further, both examiners characterized the related occupational and social impairment as, at worst, resulting in reduced reliability and productivity. Accordingly, the criteria for a rating in excess of 50 percent are not met or more closely approximated at any time during the appeal period. Therefore, the claim for an increased rating is denied. REASONS FOR REMAND 1. Entitlement to service connection for a neck disability is remanded. The Board is unable to make an informed decision on the claim because the December 2019 VA examination is inadequate. The VA examiner impermissibly appears to rely on the lack of treatment records as the basis for the negative medical opinion. Since the VA examination is inadequate, a remand is warranted for a new examination. 2. Entitlement to service connection for a right knee disability, to include as due to a service-connected left knee disability is remanded. The Board is unable to make an informed decision on the claim because the December 2019 VA examination is inadequate. The VA examiner did not address whether the Veteran had a right knee diagnosis but notes that the Veteran has a bilateral joint [knee] condition with functional loss. Additionally, the examiner does not address whether the Veteran’s right knee was caused or aggravated by his service-connected left knee disability. Since the VA examination is inadequate, a remand is warranted for a new examination. 3. Entitlement to service connection for a back disability is remanded. 4. Entitlement to service connection for a left ankle disability, to include as due to a service-connected right ankle disability is remanded. The Board is unable to make an informed decision on the claims because the December 2019 VA examination is inadequate. In both opinions VA examiner acknowledges that the Veteran had significant injury “potential” due to work as martial arts training instructor during service. The examiner then provides a negative opinion with rationale why the Veteran’s back and left ankle disability is not related to his service to include as due to being a martial arts training instructor. Additionally, the VA examiner did not discuss whether the Veteran’s left ankle disability was caused or aggravated by his service-connected right ankle disability Since the VA examination is inadequate, a remand is warranted for a new examination. 5. Entitlement to an initial rating greater than 10 percent for a left knee disability is remanded. 6. Entitlement to an initial rating greater than 10 percent for a right ankle disability is remanded. The Board is also unable to make an informed decision on the claims because the December 2019 VA examination is inadequate because on internal inconsistencies. In both opinions the examiner states that the Veteran does not experience flare ups, but then notes the Veteran’s report of pain and aggravation by walking up and down stairs. The claims are remanded for new examinations. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate VA examiner, to determine the nature and likely etiology of any diagnosed neck, back, right knee and left ankle disabilities. Copies of all pertinent records must be made available to the examiner. After reviewing the record, the examiner is asked to answer the following questions: (a) Identify all currently diagnosed neck, back, right knee and left ankle disabilities. (b) Is it at least as likely as not (50 percent probability) that any currently diagnosed neck, back, right knee or left ankle condition was incurred in or is otherwise related to service? The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. (c) Is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed neck, back, right knee or left ankle condition has been (i) caused by or (ii) aggravated by the Veteran’s service-connected left knee or right ankle disabilities? Aggravation here is defined as any increase in disability. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. 2. Schedule the Veteran for a VA examination with an appropriate VA examiner to determine the current severity of his service-connected left knee and right ankle disabilities. Copies of all pertinent records must be made available to the examiner. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the left knee and right ankle under the rating criteria. All necessary diagnostic testing should be performed using the appropriate DBQ if available. If the Veteran reports flare-ups or aggravation of his knees, the examiner should ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. 3. Confirm that the VA medical opinions provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.