Citation Nr: 21013125 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 11-10 385 DATE: March 9, 2021 ORDER Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Entitlement to a rating in excess of 10 percent for traumatic arthritis of the left elbow is denied. FINDINGS OF FACT 1. The preponderance of evidence weighs against finding that the Veteran’s psychiatric disorder, to include PTSD, is etiologically related to service. 2. The Veteran’s traumatic arthritis of the left elbow is characterized by, at worst, flexion and extension limited to 100 degrees, and forearm supination and pronation limited to 60 degrees; it is not characterized by ankylosis, a joint fracture, nonunion of the radius and ulna, or impairment of the radius or ulna. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating in excess of 10 percent for traumatic arthritis of the left elbow have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5206. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1986 to August 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2009 and August 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated in the electronic claims file. In April 2019, the Board remanded the claim to obtain updated VA treatment records and VA examinations with medical opinions. June 2020 rating decision by the RO granted service connection for cellulitis (claimed as skin condition of the hands and feet) and, thus, the issue is no longer in appellate review. The Board is cognizant that separately in appellate status is a claim for service connection for a back disability; in this appeal, the Veteran has not yet been provided the requested Board hearing. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for a psychiatric disorder, to include PTSD. The Veteran contends that his psychiatric disorder, to include PTSD, is related to an in-service assault when he was on liberty in Naples, Italy. He stated that the assault resulted in the laceration to his left hand. The Veteran’s service treatment records reported a laceration to the left hand while on liberty in Naples, Italy. The Board found the July 2017 VA examination inadequate because the examiner did not provide an explanation of how she came to her conclusion that unspecified schizophrenia spectrum and other psychotic disorder was not at least as likely as not related to the assault in Naples, Italy. The Board further found the December 2017 Private DBQ inadequate because the clinician did not provide an explanation for how he determined that schizoaffective disorder, depressed type had its onset in service and where such evidence was documented in the service treatment records. Upon remand, an October 2019 Initial Post-Traumatic Stress Disorder (PTSD) Disability Questionnaire showed that the Veteran was exposed to a traumatic event where he experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. The Veteran underwent a VA examination in October 2019, wherein he was diagnosed with unspecified schizophrenia spectrum and other psychotic disorder. The examiner opined that the acquired psychiatric disorder, to include PTSD, was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that the Discharge Exam/Report of Medical History documents from service dated August 1995 included no mention by the Veteran or the physician of the Veteran’s hand injury or any psychiatric problems associated with it, raising reasonable doubt as to how impactful that incident was on the Veteran 4 to 5 years after it had reportedly occurred. The examiner stated that it is noted in those documents that the Veteran endorsed “frequent difficulty sleeping” and “depression or excessive worry,” which further inquiry by the medical examiner was determined to be “history of difficulty sleeping and worry following positive UDS.” Further, the examiner stated, it is pure speculation on the part of the private DBQ examiner in 2017 that these symptoms were the prodromal signs of a psychotic illness rather than situational problems the Veteran was experiencing in association with his pending separation from the military for a positive urine drug test for cocaine. As important, the examiner explained, is whether or not the Veteran has a current diagnosis of PTSD. The present examiner concurs with the previous examiners from 2017 that the Veteran does not have PTSD but instead has a psychotic disorder. The examiner stated that in the present exam, the Veteran presents with many of the typical symptoms associated with PTSD but, upon closer scrutiny, the underlying connection among the Veteran’s aggression towards others, difficulty maintaining social relationships, and preference for isolation is not phobic-level anxiety secondary to trauma exposure but his paranoid delusions regarding others’ agendas. While paranoia can be found in individuals with PTSD when interacting with the public or people they don’t know well, the examiner explained, this Veteran’s paranoia rises to the level of delusions where he truly believes others, even those individuals he has known for many years, routinely plot against him and eventually intend to harm him. The examiner stated that the result of many of his perceived “provocations” from those he has known well has been assaultive behavior on his part toward the other party. Additionally, the examiner stated, he presents with auditory (hearing people talk about him or to him) and visual (seeing rats) hallucinations in the present exam, as he did in the two exams in 2017, and these psychotic symptoms are very uncommon in PTSD. Therefore, the present diagnosis of Unspecified Schizophrenia Spectrum and Other Psychotic Disorder (which is a codeable diagnosis from the DSM-5) appears the most appropriate. The present examiner believes this condition is less likely than not related to his military service. The examiner further opined that the Veteran’s current diagnosis of Unspecified Schizophrenia Spectrum and Other Psychotic Disorder meets DSM-5 criteria, but there is no evidence that it is related to the Veteran’s military service. The examiner stated that the Veteran was not treated for mental health problems in the military and there is no nexus between his military service and his current mental health symptoms. Regarding earlier conflicting evidence and other psychiatric diagnoses of record, the examiner stated that the VA treatment records contain a great deal of inconsistent findings regarding diagnoses and symptom presentation over the years. For example, the examiner stated, the Veteran carried a diagnosis of Depression in 2006 and 2007, but depression (and PTSD) screens conducted in May 2006, February 2008, and April 2009 were all negative. The examiner stated that a Psychology Consultation conducted in January 2008 found no evidence of clinical depression or anxiety, no psychotic symptoms, and no anger dyscontrol. In that exam, the examiner stated, it was noted that Veteran reported “occasional PTSD symptoms” but that he did not meet full criteria for PTSD because of an absence of arousal and avoidance symptoms. In addition, the examiner explained, the traumatic events he reported in 2008 (observing multiple deaths while in the Navy and Merchant Marines) were different than what he later reported in 2010 and 2014 from the record. The examiner stated that in an April 2010 Psychiatry Consult, the Veteran reported having symptoms since 1992-1993 which worsened after 2000, that he was now experiencing paranoia and hallucinations, and that he had 8 legal charges from 2001-2008, mostly for assault. He reported trauma from the military of “being shot down, rockets flying towards ship, seeing guys killed on this ship, and chaos everywhere.” The examiner stated that is worth noting that these combat-related traumatic events were found to be unsupported in 2016 by the VBA and in an August 2014 Mental Health Evaluation, the Veteran alluded to 10 years of recurring dreams about a physical assault but again the evaluator found no avoidance symptoms to support a PTSD diagnosis. The examiner pointed out that in an April 2017 Psychiatric Note, no psychotic symptoms were found, and he was given the diagnosis of PTSD. The Board concludes that while the Veteran carried diagnoses of unspecified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, depressed type, and PTSD during the pendency of the appeal, the preponderance of the evidence weighs against finding that any psychiatric disorder began during service or is otherwise related to an in-service injury, event, or disease. The October 2019 VA examiner opined that the Veteran’s current diagnosis of Unspecified Schizophrenia Spectrum and Other Psychotic Disorder meets DSM-5 criteria, but there is no evidence that it is related to the Veteran’s military service. The Board finds the examiner’s opinion to be probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data that clarifies any conflicting evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board accepts the VA examiner’s opinion as the most probative evidence regarding nexus based on the detailed rationale, review of the file, and citation to correct history. Therefore, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as ‘staged ratings.’ Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss but is just one fact to be considered when evaluating functional impairment). 2. Entitlement to a rating in excess of 10 percent for traumatic arthritis of the left elbow. The Veteran contends that his traumatic arthritis of the left elbow warrants a rating in excess of 10 percent. The Veteran specifically contends that his left elbow disability is manifested by limitation of flexion to 45 degrees and limited extension. See October 2018 Hearing Transcript. The Veteran’s traumatic arthritis of the left elbow has been rated under Diagnostic Code 5010-5206. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of Diagnostic Codes 5010-5206 reflects that there is no diagnostic code specifically applicable to the Veteran’s service-connected left elbow traumatic arthritis and that this disability has been rated by analogy to traumatic arthritis under Diagnostic Code 5206. Diagnostic Code 5010 provides that traumatic arthritis, when substantiated by X-ray findings, is to be evaluated under Diagnostic Code 5003 as degenerative or osteoarthritis, which in turn indicates the disability will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. Here, the Veteran is already in receipt of a 10 percent evaluation based on limitation of motion of the left elbow. As such, an additional or separate compensable rating is not warranted for the traumatic arthritis under Diagnostic Code 5010. The Veteran’s left elbow is further evaluated under Diagnostic Code 5206. Under Diagnostic Code 5206, flexion limited to 110 degrees warrants a 0 percent rating. Flexion to 100 degrees warrants a 10 percent rating. Flexion to 90 degrees warrants a 20 percent rating. Flexion to 70 degrees warrants a 30 percent rating. Flexion to 55 degrees warrants a 40 percent rating. Flexion to 45 degrees warrants a 50 percent rating. Full elbow extension and flexion is from 0 to 145 degrees, full pronation is to 80 degrees, and full supination is to 85 degrees. 38 C.F.R. § 4.71, Plate I. The Veteran’s left elbow is on his dominant side. Therefore, the Board will discuss the ratings pertaining to the “major” elbow and forearm. 38 C.F.R. § 4.71a, Diagnostic Codes 5205-5213. March 2017 VA elbow examination reported flexion limited to 130 degrees and normal extension, with pain not resulting in additional functional loss. The Veteran underwent a VA examination in October 2019 VA examination. limited motion in the left elbow. Flexion ended at 100 degrees; extension ended at 100 degrees; forearm supination ended at 60 degrees; forearm pronation ended at 60 degrees. All ranges of motion, except extension, showed objective evidence of painful motion. Pain contributed to functional loss. He was unable to perform repetitive-use testing with at least three repetitions due to pain. He denied flare ups. There was no evidence of muscle atrophy or ankylosis. The Board concludes that the Veteran’s left elbow disability rating does not warrant a rating in excess of 10 percent. His current level of impairment, specifically flexion limited to 100 degrees, is consistent with a 10 percent rating under Diagnostic Code 5206. The Board has considered the Veteran’s lay statements of record, which are probative evidence insofar as they report discernable symptomatology, see Layno v. Brown, 6 Vet. App. 465, 470 (1994); however, the Board observes that the Veteran’s ongoing complaints of left elbow symptomatology are adequately contemplated by his 10 percent disability rating under 38 C.F.R. § 4.59. The Board has also considered the potential applicability of any other diagnostic codes. The Veteran’s left elbow disability has also not been productive of symptomatology more nearly approximating that required for a compensable rating under any other applicable diagnostic code, such as favorable or unfavorable ankylosis, extension limited to 75 degrees, a joint fracture, nonunion of the radius and ulna, or impairment of the radius or ulna. 38 C.F.R. § 4.71a, Diagnostic Codes 5205, 5207-12. Though some limitation of extension was noted in the October 2019 VA examination report, extension was not limited to 75 degrees sufficient to warrant a rating in excess of 10 percent under Diagnostic Code 5207. Therefore, the Board finds that the preponderance of evidence is against granting a disability rating in excess of 10 percent for left elbow. As such, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. 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.