Citation Nr: 21022357 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 12-11 143 DATE: April 15, 2021 ORDER Entitlement to service connection for a right knee disability is granted. Entitlement to an initial 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted from July 8, 2011. FINDINGS OF FACT 1. The Veteran’s right knee disability is related to his combat service. 2. For the entire appeal period, the Veteran’s PTSD more closely approximates occupational and social impairment, with deficiencies in most areas, such as family relations, judgment, and mood. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(d). 2. The criteria for a 70 percent rating, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1999 to February 2006, to include service in Southwest Asia. This matter comes to the Board of Veterans’ Appeals (Board) from October 2010 and November 2011 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2018 decision, the Board denied, in relevant part, entitlement to service connection for a right knee disability and entitlement to an increased rating for PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2019 order, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of VA (Parties), in which the Court vacated the May 2018 Board decision with respect to the issues of service connection for a right knee disability and an increased rating for PTSD, and remanded the matter to the Board for compliance with the JMPR instructions. The Parties agreed that the Board erred “by providing an inadequate statement of reasons or bases for its determinations.” See JMPR at 2. Specifically, the Parties agreed that remand was warranted for the Board to address a December 2017 hospital discharge summary with respect to the Veteran’s psychiatric disorder and to determine whether an updated VA psychiatric examination was warranted. Id. at 3-4. In addition, the Parties agreed that remand was warranted for the Board to determine whether a VA examination of the Veteran’s right knee was required. Id. at 4-5. The Parties also agreed that the Board failed to weigh the probative value of lay evidence of an in-service event or injury and a private medical opinion providing a favorable nexus for the right knee disability, as well as the Veteran’s competency as a registered nurse to opine on diagnosis and etiology of his conditions. Id. at 5-7. Following the JMPR, in April 2020 the Board, in relevant part, remanded the issues of service connection for a right knee disability and an increased rating for PTSD. Specifically, the Board remanded for the RO to obtain VA examinations to determine the nature and etiology of the Veteran’s right knee disability and the current severity of his service-connected PTSD. See April 2020 Board remand at 7-8. Examinations and medical opinions of the right knee were obtained in May 2020 and December 2020. A psychiatric examination addressing PTSD was obtained in June 2020. 1. Entitlement to service connection for a right knee disability is granted. The Veteran asserts that his right knee disability is related to the physical demands of combat service. See December 2020 VA Compensation and Pension (C&P) examination at 3; January 2018 Informal Hearing Presentation (IHP); November 2012 VA Form 9; May 2012 VA Form 9; December 2011 Notice of Disagreement (NOD). The Board agrees. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303.    In the case of a veteran who engaged in combat with the enemy during active service during a period of war, VA will accept lay evidence of in-service incurrence of a disease or injury, if the lay evidence of onset is consistent with the circumstances, conditions, or hardships of the veteran’s service, notwithstanding the lack of documentation of this in-service incurrence. See 38 U.S.C. § 1154(b). Further, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). 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). With respect to the first element of service connection, a present disability, while a July 2020 imaging study of the right knee was normal, the December 2020 C&P examiner diagnosed the Veteran with patellofemoral pain syndrome in the right knee. To the extent the November 2017 statement of Dr. Q. notes a diagnosis of right knee arthritis, the Board affords more probative value to the negative July 2020 imaging study of the right knee. Thus, the first element of service connection is met as to patellofemoral pain syndrome of the right knee only. With respect to the second element of service connection, in-service incurrence of a disease or injury, the Veteran asserts his right knee disability stems from injuries sustained in combat service and the rigorous physical demands of his service. See December 2020 C&P examination at 3; January 2018 IHP; November 2012 VA Form 9; May 2012 VA Form 9; December 2011 NOD. Specifically, the Veteran notes injuries caused by running for cover in full gear during combat service and as a result of parachute jumps. See March 2019 C&P back examination; May 2012 VA Form 9. The Veteran is competent to describe events and injuries in service and the Board finds him to be a credible historian. Furthermore, the Board observes that the Veteran’s DD 214 reflects a parachutist badge and deployment to an imminent danger pay area. Thus, the Veteran’s description of in-service injuries stemming from parachute jumps and running for cover are consistent with the places, types, and circumstances of his combat service. See 38 U.S.C. § 1154(b). Thus, the combat presumption attaches, and it is presumed that patellofemoral pain syndrome of the right knee is due to his presumed in-service combat injuries. See Reeves, supra. The first two elements of service connection having been met, this case turns on a causal relationship linking the claimed disability to the in-service injury, otherwise known as a nexus. There are positive and negative medical opinions of record that speak to nexus. A May 2020 C&P examiner opined that it was less likely than not that a right knee disability was caused by service. The Board, however, finds this negative opinion to be inadequate. First, the examiner based this opinion, in part, on the lack of a documented disability. As noted already, the December 2020 C&P examination observed a diagnosis of patellofemoral pain syndrome in the right knee. Second, the examiner quoted from the May 2018 Board denial regarding the lack of evidence of an in-service injury. See May 2020 C&P knee examination at 2 (quoting May 2018 Board decision at 10). The May 2018 decision, however, was vacated with respect to the right knee pursuant to a JMPR granted by the Court for, in part, the Board’s failure to consider lay reports of in-service injuries and, as noted above, the combat presumption attaches. Thus, any reliance on that aspect of the May 2018 Board decision would be an inaccurate factual premise on which to base a medical opinion, and the December 2020 C&P examiner’s unfavorable opinion is afforded no probative value. A November 2017 private medical opinion asserts that the Veteran’s right knee disability, among others, is “more probable than not secondary to his military service.” The physician, however, provides no rationale to support this opinion. However, given the combat presumption and other evidence of record, the Board finds support for granting the claim in the rationales provided by medical examiners regarding the etiology of the Veteran’s service-connected varicose veins and service-connected back disability. In this regard, the Board observes a December 2020 C&P examiner stating that varicose veins can be caused by trauma or prolonged standing and because the Veteran experienced both traumatic injuries and prolonged standing in service, it was more likely than not that his varicose veins were related to service. The Board notes that the Veteran’s varicose veins are present in the right lower extremity. See May 2020 C&P artery and vein examination. In addition, a March 2019 C&P examination provided a favorable nexus opinion regarding the Veteran’s service-connected lumbar disability. The examiner linked the Veteran’s lumbar disability to an injury sustained during a parachute jump, and also noted the injury caused a service-connected fracture to his right hip. The examiner observed that the Veteran’s lumbar disability and right hip fracture caused by this event resulted in musculoskeletal disabilities arising from biomechanical modifications incurred as a result of weight-bearing joint trauma. The Board finds that the supporting rationales of the December 2020 opinion regarding varicose veins of the right lower extremity and the March 2019 opinion regarding a lumbar disability provide adequate evidence to support a causal link between a right knee disability and in-service combat injuries. The December 2020 examiner observed that the Veteran sustained leg trauma in service that resulted in varicose veins in his right leg. The March 2019 examiner observed that a bad parachute landing resulted in trauma to a weight-bearing joint, resulting in biomechanical modifications and musculoskeletal disabilities of the right hip and lumbar region. Based on the medical reasoning provided by these examiners, the Board finds it is reasonable to extend their rationale regarding nexus to Veteran’s right knee disability as applied to his right-leg varicose veins, right hip, and lumbar spine disabilities. In other words, if in-service combat trauma caused varicose veins in the right leg and musculoskeletal injuries to the right hip and lumbar spine, then it is reasonable to conclude, resolving benefit of the doubt in the Veteran’s favor, that the same in-service combat injuries also resulted in trauma and biomechanical modifications impacting his right knee. This is especially so in the light of there being no probative negative opinions of record. In sum, the Board finds that medical evidence of record establishes a diagnosis of patellofemoral pain syndrome in the right knee. In addition, the Veteran’s lay reports of in-service injuries are consistent with the places, types, and circumstances of his combat service, and the Board finds him to be credible. Lastly, negative and positive nexus opinions regarding the right knee are non-probative either for inadequate rationale or no rationale. However, the Board finds that medical reasoning linking varicose veins in the right leg, right hip fracture, and lumbar disability to a common etiology is adequate to also link his right knee disability to the same combat injuries after resolving reasonable doubt in the Veteran’s favor. Thus, all elements of service connection are established, and the benefit sought on appeal is granted. 2. Entitlement to a 70 percent rating, but no higher, for PTSD is granted from July 8, 2011. The Veteran asserts his PTSD symptomatology warrants an increased evaluation. Specifically, the Veteran asserts he is entitled to a rating in excess of 30 percent prior to June 1, 2020. See June 2018 Statement in Support of Claim; December 2017 Statement in Support of Claim; May 2012 VA Form 9; December 2011 NOD. The Board agrees. The Veteran is in receipt of a 30 percent rating for PTSD from July 8, 2011, to June 1, 2020, and a 50 percent rating thereafter. The Veteran is rated under DC 9411, and the period on appeal is from July 8, 2011. Under DC 9411, a 30 percent rating 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where PTSD is manifested by occupational and social impairment with reduced reliability and productivity, due to 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned where PTSD produces 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is 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 symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather 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). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” The Federal Circuit further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. Thus, “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. As such, the Board will consider both the Veteran’s specific symptomatology as well as the occupational and social impairment described in the general rating formula to determine whether an increased evaluation is warranted. In this regard, while the diagnostic criteria sets forth multiple symptoms indicative of the 70 percent level, the Court held in Bankhead v. Shulkin that “the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” See 29 Vet. App. 10, 20 (2017). In a June 2020 C&P examination, a psychologist noted PTSD symptomatology productive of 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 examiner also noted isolation; nightmares; anxiety; chronic sleep impairment; panic attacks that occur weekly or less often; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner also observed that the Veteran’s PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. From December 13, 2017 to January 2018, the Veteran was hospitalized due to depressive symptoms, anxiety, irritability, and suicidal ideation. His was also hospitalized in October-November 2020 due to severe major depressive disorder, anxiety, and suicidal ideation, and as of November 2020, he was considered high-risk for suicide. See November 2020 VA suicide prevention note. The Veteran’s symptoms were depressed mood, sleep impairment, passive suicidality, anger and irritability, impulsive behavior, anxiety and agitation, and visual hallucinations. See id. A November 2017 private medical opinion described the Veteran’s psychiatric symptomatology as nervousness, anxiety, irritability, difficulty in adapting to stressful circumstances, inability to establish and maintain effective work and social relationships, disturbances of motivation and mood, depressed mood, little interest or pleasure in doing things, hopelessness, crying spells, insomnia, nightmares and flashbacks, suspiciousness, and poor concentration. In an August 2016 C&P examination, a psychologist noted symptomatology productive of occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner also observed symptoms of chronic sleep impairment, and noted that the Veteran’s PTSD symptoms did not cause clinically significant distress or impairment in social, occupational, or other important areas of functioning, with the Veteran denying any suicidal or homicidal ideation. However, the examiner described the Veteran’s insight and judgment as fair. A February 2011 C&P examiner noted occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner noted the Veteran specifically denied thoughts or plans of suicide or self-harm, but indicated that the Veteran withdrew from those close to him at times when he had memories about the death of a friend in Iraq. A February 2011 VA psychiatry treatment note indicates PTSD symptomatology productive of auditory and visual hallucinations; while his thought process was coherent and memory intact with good judgment, fair insight was endorsed. The examiner also observed that the Veteran’s symptoms lasted longer than one month and caused clinically significant distress and impairment in social, occupational, and other important areas of life functioning. Here, records dated just prior to the appeal period show the Veteran experiencing auditory and visual hallucinations in 2011, which were again endorsed in 2020. Considering this severe symptom, along with his isolative behaviors, impaired insight, and deficiency in mood demonstrated throughout the appeal period, as well as his two hospitalizations in 2017 and 2020 for suicidal ideation, the Board finds that a 70 percent rating, but no higher, is warranted over the appeal period for demonstrated occupational and social impairment with deficiencies in most areas, namely family relations, judgment, thinking and mood. Notably, the fact that the Veteran was experiencing suicidality to the point of requiring hospital admission is sufficient to find that the Veteran’s psychiatric disability would cause occupational and social impairment with deficiencies in most areas at the 70 percent level. 38 C.F.R. § 4.130, DC 9411; Bankhead, 29 Vet. App. at 20. A rating in excess of 70 percent is not warranted at any point during the appeal period. Specifically, the Veteran endorsed hallucinations in 2011 and 2020, and thus they are not persistent. Additionally, while the Veteran was hospitalized in 2017 and 2020 for suicidal ideation, and considered high-risk for suicide at the beginning of his hospitalization in November 2020, the Board finds two hospitalizations over a 9-year appeal period does not equate to a “persistent” danger of the Veteran hurting himself. Nor has the Veteran ever demonstrated any of any more severe symptomatology necessary for a total rating, or any symptoms of similar frequency, severity or duration. Notably, the Veteran continues to be employed and thus is not totally occupationally impaired. He has never evidenced any gross impairment in thought processes or communication; grossly inappropriate behavior; 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. Thus, for reasons and bases outlined above, the Board finds that a 70 percent rating, but no higher is warranted for the Veteran’s PTSD over the appeal period. To that extent, the appeal is granted. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.