Citation Nr: 21015214 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 12-33 156 DATE: March 16, 2021 ORDER Entitlement to a 70 percent disability rating for the Veteran's service-connected post-traumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected left knee condition is remanded. Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected right knee condition is remanded. Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for a sinus condition is remanded. FINDING OF FACT For the period on appeal; the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for establishing entitlement to a 70 percent disability rating for the Veteran's service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1965 to July 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2009 and October 2015 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the Veteran’s claims in a September 2019 decision. The Veteran then appealed to the United States Court of Appeals for Veteran’s Claims (CAVC), and in September 2020 CAVC vacated parts of the September 2019 Board decision, granted a joint motion for remand, and returned the case to the Board for action consistent with the joint motion for remand. Increased Rating PTSD—Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of the 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. See 38 C.F.R. § 4.7. PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. In pertinent part a 50 percent disability 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability 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); and inability to establish and maintain effective relationships. Finally, a 100 percent disability rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought process 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, own occupation, or own name. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). When there is an approximate balance of positive and negative evidence regarding the degree of disability, the benefit of the doubt shall be given to the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Analysis Critically, the Board observes that the rating criteria for a 70 percent rating for PTSD indicates an array of symptoms, which are likely sufficient to cause impairment and deficiencies in most areas of life functioning, to include work, school, family relations, judgment, thinking, or mood. Such symptoms need not rise to the level of activity preclusion, but rather negatively influence or impact upon most areas of life functioning. A higher 100 percent rating is warranted when the evidence indicates total impairment. 38 C.F.R. § 4.103, Diagnostic Code 9411. The symptoms considered in determining the level of impairment under the Rating Schedule for PTSD are not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). Mauerhan, 16 Vet. App. 436. The Veteran was afforded VA PTSD examinations in August 2009, May 2012, and April 2016. Noted symptoms were depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, nightmares, mild memory loss, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintain effective work and social relationships, hypervigilance, exaggerated startle response, obsessional rituals which interfere with routine activities, loss of interest in activities, and isolation. The examiners further noted that the Veteran exhibits various degrees of occupational and social impairment. The Veteran provided lay statements wherein he reported that he has panic attacks 3-4 times per week, impaired judgment, memory loss, and difficulty with relationships. Further, the Veteran reported that he secludes himself from others and suffers from frequent nightmares and depression. The Veteran’s VA psychiatric treatment records indicate that he occasionally experiences suicidal thoughts and thoughts of death. Specifically, the Board notes a March 2010 treatment note where when talking about suicidal symptoms the Veteran stated “that sounds like me;” a June 2010 treatment note where the Veteran admitted to thoughts of death; and an October 2017 VA treatment note which indicated that the Veteran experienced suicidal ideation. Further, the Board recognizes September 2012 and April 2017 VA treatment notes which indicate that the Veteran occasionally experiences auditory and visual hallucinations described as seeing things out of the corner of his eye, sometimes hearing things, and seeing things moving in the dark that nobody else can see. The Board acknowledges that throughout the appeal period the Veteran has suicidal thoughts. As the United States Court of Appeals for Veterans Claims has affirmed, suicidal ideation does not require suicidal intent, a plan, or prepatory behavior. Bankhead, v. Shulkin, 29 Vet. App. 10, 19 (2017). The Board notes, suicidal ideation is a serious symptom. In Bankhead, the Court indicated that the Board must consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating. Further, the Court held that the presence of suicidal ideation alone might cause occupational and social impairment with deficiencies in most areas. Id. Given the Veteran’s symptoms reported throughout the period of the claim, the Board finds that a 70 percent rating is warranted. In light of the Court’s decision in Bankhead, and after having resolved all reasonable doubt in favor of the Veteran, the Board has determined that a 70 percent rating is warranted for the entire period on appeal. In this regard, the Board finds that due to the symptoms summarized above, including the Veteran’s reported suicidal thoughts, his service-connected PTSD has most nearly approximated occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. In sum, the records show the Veteran received consistent mental health care throughout the period on appeal. Additionally, the evidence shows the Veteran has experienced several significant symptoms and impairments, which include: anxiety, chronic sleep impairment, disturbances of motivation and mood, recurrent distressing memories, nightmares, panic attacks, flattened affect, obsessional rituals, avoidance behaviors, markedly diminished interest in significant activities, hypervigilance, exaggerated startle response, hallucinations, mild memory loss, and suicidal ideation. Throughout this period, the weight of the evidence supports a finding that the Veteran’s PTSD manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. However, the Board finds that the signs and symptoms associated with his service-connected PTSD do not more nearly approximate total social and occupational impairment. In this regard, for example, there is no evidence of delusions or grossly inappropriate behavior. He has been able to perform activities of daily living and is competent to handle his own finances. Additionally, the evidence does not show the Veteran experiences memory impairments of such severity that he forgets names of close relatives, his own occupation, or his own name. In short, despite the Veteran’s symptoms, he had not exhibited the type of emotional and cognitive impairment reserved for a total rating. 38 C.F.R. § 4.130, DC 9411. Moreover, none of the Veteran’s VA examiners concluded that the Veteran’s PTSD symptoms were productive of total occupational and social impairment. Based on the foregoing, the totality of the evidence shows that the disability picture for the Veteran’s PTSD warrants a 70 percent rating for the period on appeal. However, the preponderance of the evidence is against the assignment of a higher, 100 percent, rating. 38 C.F.R. § 3.102. The Board has applied the benefit of the doubt where appropriate. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Consideration has been given to assigning a staged rating; however, the evidence does not suggest that the severity has fluctuated during the period of this appeal, so a staged rating is not appropriate for this claim. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). REASONS FOR REMAND Bilateral Knees The record contains an August 2015 VA examination regarding the Veteran’s bilateral knee disabilities; however, this examination does not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Board specifically notes that the examiner indicated that the Veteran’s condition experiences intermittent flares of pain and swelling, however, the examiner reported that the Veteran experiences no flare-ups of this condition in a separate part of the examination. As such, the Board finds that the Veteran must undergo another examination in light of the requirements of Correia and Sharp. Bilateral Ankles The Board notes that the Veteran’s service treatment records (STRs) note he had swollen painful knees and ankles in service. Further, in the Veteran’s August 2015 Knee and Lower Leg conditions examination the VA examiner noted that x-rays of the Veteran’s knees showed signs of chondrocalcinosis (also referred to as pseudogout). The examiner noted that pseudogout causes intermittent swelling and pain in joints and mainly effects knees and ankles. However, the examiner only opined on the Veteran’s bilateral knee conditions and did not opine on whether the Veteran is currently experiencing pseudogout in his ankles or whether the Veteran’s ankle condition is etiologically related to service. As such, the Board finds that an additional medical opinion must be obtained which determines whether the Veteran’s is currently experiencing pseudogout in his ankles, and if so, whether the disability is etiologically related to his active duty service. Sinus Condition To date, the Veteran has not been afforded a VA examination to address the etiology of his claimed sinus disability. The Board finds that an examination and medical opinion is necessary to determine whether the Veteran’s diagnosed sinus condition is etiologically related to his active duty service. The Veteran’s STRs contain multiple complaints of, and treatment for, nasal congestion, pharyngitis, and “flu symptoms” during active duty service. Additionally, the Board notes that the Veteran’s VA treatment records contain a diagnosis of, and treatment for, chronic sinusitis. Based on the foregoing, the Board finds examinations and medical opinions are necessary to determine whether the Veteran’s diagnosed sinusitis condition was caused, or aggravated, by his active military service. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his bilateral knee disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (b.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If the Veteran is not currently experiencing a flare-up, then based on relevant information elicited from the Veteran, a review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the knee disabilities and comment on the effect of the knee disabilities on any occupational functioning and activities of daily living. (d.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Obtain an opinion from a qualified examiner with sufficient expertise to address the etiology of the Veteran’s claimed ankle condition. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. Following a review of the relevant records and lay statements, the examiner(s) should state whether the Veteran’s claimed bilateral ankle disabilities at least as likely as not (a 50 percent probability or greater): originated during his period of active service or is otherwise etiologically related to his active service, to include whether any current condition is etiologically related to the Veteran’s in-service swollen, painful, ankles. Specifically, the Board notes the examiner should state whether the Veteran’s ankle condition stems from the same pseudogout disability that was diagnosed in the Veteran’s knees by the August 2015 VA examiner. For purposes of these opinions, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran’s competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Finally, afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran’s claimed sinus disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state whether the Veteran’s claimed sinus disability (diagnosed as sinusitis) at least as likely as not (a 50 percent probability or greater): originated during his period of active service or is otherwise etiologically related to his active service. For purposes of these opinions, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran’s competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiners should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.