Citation Nr: 21024623 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 09-16 710 DATE: April 23, 2021 ORDER Entitlement to service connection for left knee osteoarthritis is granted. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to May 27, 2011, and in excess of 30 percent thereafter, for coronary artery disease (CAD) is remanded. FINDINGS OF FACT 1. The Veteran’s left knee osteoarthritis is aggravated beyond its natural progression by his service-connected right knee arthroplasty and instability. 2. The severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee osteoarthritis as secondary to right knee arthroplasty and instability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for a disability rating in excess of 70 percent for PTSD 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 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1965 to April 1969 and from April 1976 to April 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2008 and July 2011 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, the Court issued a memorandum decision that vacated an October 2013 Board decision with regard to PTSD, and remanded that matter for readjudication consistent with its instructions. These matters have been before the Board on several occasions. The Board most recently remanded the above-listed issues for further development in January 2018. 1. Entitlement to service connection for left knee osteoarthritis The Veteran seeks service connection for left knee osteoarthritis. He contends that his current left knee disability is secondary to his service-connected right knee disability. 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). Further, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Establishing service connection on a secondary basis essentially requires evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. Service treatment records are silent for complaints, diagnosis, or treatment for the left knee. The Veteran does not report a left knee injury in-service, instead he contends that his left knee disability is secondary to his service-connected right knee disability. A negative nexus opinion on the theory of secondary service connection was previously provided by a VA examiner in November 2017. In the January 2018 remand the Board found that this opinion was inadequate, because it did not consider whether the Veteran’s current left knee disability was aggravated by the his service-connected right knee disability. A February 2020 VA examination report shows the Veteran has a current disability of left knee joint osteoarthritis. The VA examiner opined that this left knee disability is unlikely to be related to an in-service event or proximately due to his right knee disability. However, the examiner further opined that it is at least as likely as not the Veteran’s left knee disability is aggravated beyond its natural progress by his service-connected right knee disability and explained the reasoning for his opinion. The Board finds the opinion of the February 2020 examiner to be probative. The examiner has the appropriate training and knowledge to evaluate the disability at issue. The examiner also provided sufficient rationale to support the opinion, which included consideration of the Veteran’s reported symptoms during and after service, and the post-service clinical history. There are no competent opinions to the contrary on the question of aggravation. Upon review of the record, the evidence is at least in equipoise as to whether the Veteran’s current left knee joint osteoarthritis is aggravated beyond its natural progression by his service-connected right knee disability. Accordingly, after resolving all doubt in favor of the Veteran, service connection for left knee joint osteoarthritis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.” 2. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) As an initial matter, the Veteran’s representative contends that the appeal for a higher PTSD rating should be remanded because the VA failed to properly identify all the evidence. Specifically, the representative contends that VA cited medical records dated “November 15, 2015 to January 30, (sic),” without a clear end date listed. VA treatment records associated with the record in March 2020 show VA treatment notes dated through January 30, 2020. The Board finds that the mistake by the AOJ is clearly a clerical error. As such, the Board finds a remand for the issuance of a SSOC with respect to this claim is unnecessary. In a May 2008 rating decision, the RO granted a 50 percent rating, effective October 13, 2007, the date the Veteran’s claim for an increase was received. The Veteran appealed from this rating decision. In an April 2014 rating decision, which implemented a partially favorable October 2013 Board decision, the RO assigned a 70 percent rating, effective October 13, 2007. Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. When rating the Veteran’s service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of the two disability evaluations is 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. After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings apply to both initial and increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (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). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 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 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; or memory loss for names of close relatives, own occupation or own name. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for an increased disability rating of 100 percent. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. The Veteran was afforded a VA examination in December 2007. The Veteran reported depression, combat-related nightmares, thrashing in his sleep, anxiety around others, problems with concentration, forgetfulness, and irritability. He reported that he had no close friends. Mental status examination revealed restlessness, some rambling speech, anxious and depressed mood, blunted affect, and poorly organized thoughts at times. He was casually dressed, cooperative though also irritable and guarded, had intact judgment, and average intelligence, and good impulse control. Insight was noted as partially intact and memory was mildly impaired. The Veteran reported passive suicidal thoughts, where he reported that there were times when he wished he would not wake up. The examiner noted symptoms of persistent re-experiencing of the event, avoidance of stimuli, persistent increased arousal, difficulty falling asleep, irritability, difficulty concentrating, and exaggerated startle response. The examiner diagnosed PTSD. The examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with reduced reliability and productivity. She indicated that the Veteran’s functioning had been adversely impacted, and that this would likely continue throughout his life. From a clinical perspective, improvement was not likely to occur and could not realistically be expected. In April 2009, a Social Security Administration (SSA) consultant evaluated the Veteran’s PTSD in a disability claim before the SSA. The clinician diagnosed PTSD, chronic. She noted a history of depression, combat-related nightmares, and anxiety and irritability. Mental status exam revealed depressed mood, but was otherwise within normal limits. No suicidal or homicidal ideation was noted. The clinician found that the Veteran had difficulty socializing due to being uncomfortable around people. He would be able to shop, drive, and handle finances. In June 2009, a second SSA consultant evaluated the Veteran’s PTSD for the purposes of his disability claim. The clinician found that the Veteran’s PTSD caused hypervigilance, anxiety, and difficulty focusing. Her consultant notes identified symptoms of depression, combat-related nightmares, fatigue, worry, and panic attacks. The Veteran reported feeling guilty over another soldier who was killed, mood swings, and impulsivity. Mental status exam revealed anxious mood and irritability. The Veteran was cooperative. He denied suicidal thoughts. The Veteran was afforded a VA examination in August 2012. The examiner diagnosed PTSD. The Veteran reported that he was a loner with no close friends. He also reported that he had been married for 31 years, had one grandson and two granddaughters, and that enjoyed spending time with them. The Veteran reported depressed mood, lack of interest, poor appetite, low energy, sleep disturbance, and poor concentration. He denied suicidal ideation, intent, or plan. The examiner noted PTSD symptoms of anxiety, suspiciousness, mild memory loss, and flattened affect. Mental status examination revealed some rambling speech, irritability, depressed, anxious, and dysphoric mood, and mildly impaired memory. The examiner noted intrusive events, recurrent distressing dreams, and distress at exposure to internal or external cues that resemble an aspect of the traumatic event. The examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with reduced reliability and productivity. The January 2015 memorandum decision from the Court noted that medical records suggested a diagnosis of major depression but, the August 2012 VA examiner did not diagnose depression or list depression as a symptom of the Veteran’s PTSD. In September 2015, the Board remanded for a VA examination to clearly identify all Axis I diagnoses, and whether any diagnoses are distinguishable from the Veteran’s service-connected PTSD. Pursuant to the Board remand, the Veteran was afforded a VA examination in September 2017. The Veteran reported irritability and anger when his wife makes requests. He reported re-experiencing, avoidance, hyperarousal, frequent upsetting thoughts, and recurrent memories of events. He specifically indicated recurring memories of being in a rice patty, that everyone was killed, and someone grabbed him and pulled him to safety. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner opined that the Veteran’s depressive symptoms are a part of his PTSD diagnosis. She found that the Veteran did not meet the criteria for a separate depressive disorder. She concluded that the Veteran does not have more than one mental disorder diagnosed. The examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with deficiencies in most areas. In November 2017, a VA examiner offered an addendum report. The examiner clarified in the report that any depressive symptomatology was subsumed by PTSD and was not a separate mental disorder. No separate diagnosis was indicated, nor was there a differentiation of symptoms. The examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with deficiencies in most areas. Both September 2017 and November 2017 VA examiners opined that the Veteran had a diagnosis of PTSD and that his current depressive symptoms were part of this PTSD diagnosis (and not a separate depressive disorder). However, as noted in the 2018 remand, neither examiner identified the other Axis I diagnoses that were present during the period of claim (i.e., major depressive disorder and anxiety disorder not otherwise specified, which were both noted in multiple VA treatment records dating since September 2012) and whether those diagnoses were distinguishable from PTSD. The Veteran was afforded a VA examination in February 2020. The Veteran reported irritability, difficulty with concentration, and ongoing sleep disturbance. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances. Behavioral examination revealed the Veteran was cooperative and attentive. He did report anxiety, depression, irritability, and lack of trust. His thought stream was logical and goal-directed. He denied suicidal ideation, intent, plan, and behavior. He had some difficulty with concentration and attention, though his memory appeared to be intact. The examiner diagnosed PTSD. After reviewing pertinent records, she opined that the Veteran’s medical records evince a diagnosis of PTSD along with mood and anxiety symptoms. She indicated that the mood and anxiety symptoms appear to be symptomatology of PTSD. She concluded that there was no psychiatric disability separate and distinguishable from PTSD. She explained that the major depressive and anxiety disorder not otherwise specified noted in underlying VA treatment records should be subsumed under PTSD, and that the anxiety and depressive symptoms are symptoms of PTSD. The examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with deficiencies in most areas. The Board gives the February 2020 opinion great weight. The Board finds that the Veteran has symptoms of anxiety and depression, and that his symptoms are related to his PTSD. The VA examiners’ review of clinical records found that there is no psychiatric disability separate and distinguishable from the Veteran’s service-connected PTSD. After careful review of the evidentiary records, the Board finds the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. During the appeal period, the Veteran displayed symptoms of depressed mood, anxiety, hypervigilance, suspiciousness, sleep disturbances, flattened affect, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, difficulty in establishing and maintaining effective relationships, irritability, impaired impulse control, and suspiciousness. These symptoms span from 30 percent to 70 percent rating criteria under Diagnostic Code 9411. Further, the September 2017, November 2017, and February 2020 examiners summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. This clinical determination is commensurate with a 70 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. Moreover, while the records show the Veteran has been granted a total disability rating based on individual unemployability from March 7, 2009, the Veteran was not totally socially impaired. At the 2012 VA examination the Veteran reported he enjoys seeing friends from the military when they come to Melbourne every year. At the November 2017 exam, the Veteran reported a great relationship with his second wife after 30 plus years of marriage. Indeed, he also reported that he had a good relationship with his daughter and his three grandchildren. While VA examiners noted that the Veteran was uncomfortable in crowds, none of the VA examiners found total occupational and social impairment due to his PTSD. Notably, the record during the entire appeal period does not contain any evidence of symptoms such as gross impairment in thought processes; persistent delusions or hallucinations; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); grossly inappropriate behavior; or memory loss for names of close relatives, own occupation, or own name, as is considered for a 100 percent disability rating for PTSD. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms, including hypervigilance and recurrent nightmares, more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in excess of 70 duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Veteran’s representative contended in the June 2008 notice of disagreement that the Veteran’s Global Assessment of Functioning (GAF) score of 50, which indicates serious impairment in several areas, is probative evidence in support of a higher rating. Since that time, the American Psychiatric Association has published a newer version of the Diagnostic and Statistical Manual of Mental Disorders (5th Ed. 2013) that abandoned the use of GAF scores because of their conceptual lack of clarity and questionable psychometrics in routine practice. Given this development, the Board will not request clarification from an examiner and instead will disregard the GAF score altogether. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied.   REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent prior to May 27, 2011, and in excess of 30 percent thereafter, for coronary artery disease (CAD) is remanded. In January 2018, the Board remanded the claim for CAD. The Veteran underwent a VA heart examination in February 2020, but the VA heart examiner did not adequately respond to all of the Board’s remand instructions. Specifically, the VA examiner did not make any reference to a 2009 VA treatment record (which had noted a METs level of 4 to 7 for the Veteran), which had been explicitly requested by the Board’s remand instructions. While the Board’s prior remand did not clearly specify, it is a retrospective medical opinion regarding whether the METs noted in 2009 appear to be accurate based on the retrospective review of the relevant lay and medical evidence that is required. On remand, an addendum medical opinion must be obtained. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: (Continued on the next page)   Obtain an addendum opinion from a VA examiner with sufficient expertise to determine the severity of the Veteran’s service-connected coronary artery disease. Following a review of the relevant records and lay statements, the examiner should provide a retrospective medical opinion addressing whether the METs noted in 2009 appear to be accurate. All pertinent evidence of record must be made available to and reviewed by the examiner. If the examiner cannot provide the retrospective opinion without resorting to mere speculation, he or she is to explain why this is so. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.