Citation Nr: 21024792 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-48 195 DATE: April 26, 2021 ORDER Entitlement to an initial disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an initial disability rating greater than 10 percent for left knee degenerative arthritis is remanded. FINDING OF FACT The Veteran’s PTSD was manifested by symptoms resulting in occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. The Veteran’s PTSD was not manifested by symptoms resulting in total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2019); 38 C.F.R. § § 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). . REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1988 to July 1996. She appeals a March 2015 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction denying entitlement to service connection for asthma and an initial rating greater than 10 percent for left knee degenerative arthritis. She also appealed an October 2017 rating decision denying entitlement to an initial rating greater than 30 percent for PTSD. In April 2019, the Board of Veterans’ Appeals (Board) increased the Veteran’s initial rating to 50 percent and denied the other issues. In February 2020, pursuant to a Joint Motion for Partial Remand (JMPR), the Court of Appeals for Veterans Claims (Court) vacated, in part, and remanded the April 2019 Board decision that denied entitlement to service connection for asthma and initial ratings greater than 50 percent for PTSD and 10 percent for a left knee condition. In October 2020, the Board remanded these issues for development in compliance with the February 2020 JMPR. Subsequent to this development, the AOJ granted service connection for asthma; thus, this issue was granted in full and is no longer before the Board. See February 2021 rating decision. The appeal for increased initial ratings for PTSD and a left knee condition, however, are back before the Board. Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). 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 Veteran contends her service-connected PTSD is more severe than the current 50 percent rating would indicate under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 50 percent 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 effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation or name. Id. For a PTSD rating, the Board must conduct a holistic analysis that considers the severity, frequency, and duration of all associated symptoms with the Veteran’s level of occupational and social impairment and not solely focus on the examiner’s assessment at the moment of an examination. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.126(a). Then, the Board must determine whether the Veteran’s symptomatology caused a level of impairment in “most areas” applicable to the relevant percentage rating criteria. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (2013). At the Veteran’s first VA examination, the May 2017 VA examiner found the Veteran had symptoms of depression, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and obsessional rituals which interfere with routine activities. The VA examiner also noted the Veteran had irritable behavior and angry outbursts. See May 2017 VA examination report. A March 2020 VA examiner found the Veteran exhibited the same symptoms of depression, anxiety, chronic sleep impairment, and mild memory loss, in addition to panic attacks that occurred weekly, disturbances of motivation and mood, difficulty adapting to stressful circumstances, and impaired impulse control. At both VA examinations, the Veteran noted suffering from passive suicidal ideation. Essentially, the two VA examination reports noted the Veteran suffered from similar symptoms during the entire appeal period. After a review of the entire medical and lay evidence of record, in conjunction with the findings of the two VA examinations, all discussed in detail below, the Board finds the Veteran’s psychiatric symptoms warrant a 70 percent disability rating, but no higher, throughout the entire appeal period. The Veteran does not exhibit total social impairment. The record reflects she lived with her husband during the appeal period and raised three daughters, all with whom she reported a “good” relationship. See, e.g., May 2017 and March 2020 VA examination reports. Although the Veteran admitted to limited social contacts, she reported a good relationship with her mother, “some friends,” and a cousin. Id. She additionally stated she led a 4H club and had “friends she camps with.” Id. Thus, while the Veteran reported difficulty among crowds and has “limited social contacts,” the record does not reflect she is unable to establish and maintain relationships. The Veteran denied any suicidal intent or plan, but she did express thoughts of passive suicidal ideation throughout the appeal period frequent enough to meet the criteria for a 70 percent rating in conjunction with her other symptoms. See, e.g., September 2014 VA treatment records (“last week…had several thoughts” of suicidal ideation); May 2017 VA treatment records; May 2017 VA examination report (“increased thoughts of suicide in the past”); March 2020 VA examination report (“suicidal ideation with no plan…feelings of being ‘better off dead’”). At times, the Veteran denied any suicidal or homicidal ideation and, importantly, VA examiners and the Veteran’s physicians did not find the Veteran a persistent danger to herself or others, criteria considered for a 100 percent rating. See, e.g., December 2014, August 2016, and September 2020 VA treatment records. Thus, the Veteran’s passive suicidal ideation meets the criteria for a 70 percent rating, but no higher. Additionally, the Veteran reported, and the medical records reflect, impaired impulse control and obsessive rituals, but the record does not reflect the Veteran’s general behavior was grossly inappropriate. See, e.g., March 2020 VA examination report (“anger issues” and has a “short fuse”); May 2017 VA examination report (“time on the internet…has been interfering with routines”); July 2017 VA Form 21-0781a (obsessive ritual of “overeating or undereating”). For example, the Veteran expressed she “gets easily angry” and “yells, shouts, curses, and throws things,” but she denied any physical violence or legal interference. See, e.g., August 2016 VA treatment records (“no violence”); May 2017 VA examination report. In a work environment, the Veteran expressed difficulty handling the stress of full-time nursing and stated she left her nursing position after ten years “due to difficulties handling stress;” however, the Veteran denied ever being terminated from her job, she reported receiving “good reviews,” and the record does not reflect any conflict with fellow employees or patients. See May 2017 VA examination report; see also March 2020 VA examination report. Additionally, in March 2020, the Veteran reported to still work as a “PRN nurse.” Id. Thus, despite her impaired impulse control and difficulty adapting to stressful circumstances, VA treatment records note good judgment, generally functioning behavior, and no physical violence or relevant legal issues during the appeal period. See, e.g., December 2014 VA treatment records; August 2016 VA treatment records; November 2016 VA treatment records; March 2020 VA examination report. Thus, the record does not reflect the Veteran has grossly inappropriate behavior, one of the criteria considered for a 100 percent rating. Finally, the record reflects the Veteran had no gross impairment in thought or communication, was properly oriented, and she had a full range of affect during the entire appeal period. See, e.g., October 2016 VA treatment records (logical thought process; regular, coherent speech; alert and oriented); May 2017 VA examination report; November 2019 VA treatment records; March 2020 VA examination report. Also, the Veteran noted she “smells things that other people do not smell” but denied having delusions and auditory or visual hallucinations. Id. Further, the record reflects the Veteran has memory loss, but it is not so severe that she forgets her own name or the name of her family members. See, e.g., October 2016 VA treatment records (“no memory impairment”); May 2017 VA examination report. Finally, there is no indication the Veteran is unable to perform activities of daily living (ADLs) and physicians consistently found the Veteran’s appearance and hygiene appropriate. See, e.g., January 2016 VA treatment records (“neat, clean” appearance); May 2017 VA examination report (“showers regularly”); August 2018 VA treatment records (“well-groomed”). Overall, the record does not reflect the Veteran’s symptoms reach the severity, duration, or frequency required for a rating over 70 percent. In summation, the Veteran’s psychiatric symptoms cause social and occupational impairment in most areas, including her work, thinking and mood. They do not, however, rise to the rating criteria for total social and occupational impairment. She noted suicidal ideation with impaired impulse control during the appeal period, but not to the extent she was a persistent danger to herself or others. She also does not have grossly inappropriate behavior or complain of delusions or hallucinations during the appeal period. She is properly oriented and does not exhibit gross impairment in thought or communication. Finally, the Veteran’s memory loss is not so severe she cannot remember her own name or hardwired information, and she retains the ability to perform ADLs. As such, the Board grants entitlement to an increased rating of 70 percent, but no higher, for PTSD. REASONS FOR REMAND In accordance with the February 2020 JMPR, the Board remanded the Veteran’s claim for an increased initial rating for left knee degenerative arthritis to obtain an adequate examination as the previous March 2015 and May 2017 VA examiners did not consider the Veteran’s additional functional loss during flare-ups and with repeated use over time. See October 2020 Board Remand. Prior to the Board remand, a February 2020 VA examiner incongruously noted that the Veteran both reported and denied flare-ups. Further, the VA examiner noted the Veteran’s left knee was being examined after repeated use over time with flexion limited to 75 degrees and she was unable to complete repetitive testing due to “TTP peripatellar tendon pain,” but the examiner did not note the resulting functional loss or range of motion from this pain. See February 2020 VA examination report. In January 2021, a different VA examiner noted the Veteran’s left knee had full range of motion and did not suffer from flare-ups, but there was functional loss after repeated use over time; however, the VA examiner did not document the Veteran’s description of this functional loss. Instead, the VA examiner noted the Veteran was able to complete at least three repetitions without any functional loss, but confusingly also stated that pain and weakness caused additional functional loss. See January 2021 VA examination report. Thus, these two internally conflicting examination reports are inadequate for adjudication purposes. Importantly, the record reflects the Veteran suffers from flare-ups and functional loss with repeated use over time; this was the reason for the February 2020 JMPR. See February 2020 VA examination report (flare-ups). Thus, a remand is required to adequately provide a medical opinion regarding whether pain, fatiguability, weakness, lack of endurance, or incoordination cause additional functional loss during flare-ups and with repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records and associate the same with the claims file. 2. After the development in #1 above is complete, schedule the Veteran for a VA examination by an appropriately qualified clinician, other than the clinician who provided the January 2021 examination, to determine the nature and severity of her service-connected left knee degenerative arthritis. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, precipitating and alleviating factors, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repetitive use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due solely to his left and right knee chondromalacia and discuss the effect of each on any occupational functioning. 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 should consider that the Veteran is competent to report her right and left knee symptoms and such reports must be specifically acknowledged and considered in formulating any opinions. Further, the examiner must discuss any of the Veteran’s assertions on flare-ups. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so should also be provided. (Continued on the next page)   3. After the above has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.