Citation Nr: 21026875 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-27 500A DATE: May 4, 2021 ORDER The claim of entitlement to service connection for a left knee disorder is denied. The claim of entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran's left knee disorder did not manifest in service or for many years thereafter and is not otherwise causally or etiologically related to his military service. 2. The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a disability rating in excess of 30 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 FINDING AND CONCLUSION The Veteran had honorable active service with the United States Army from June 1967 to May 1969. In June 2019, this claim was remanded for additional development. Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Additionally, the Board finds there has been substantial compliance with its June 2019 remand directives. The claim was remanded to obtain VA examinations, which were obtained in December 2019 and October 2020. The Board also instructed the AOJ to ask the Veteran to identify outstanding private treatment records. The post-remand development letter was sent in November 2019. Stegall v. West, 11 Vet. App. 268 (1998). 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; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). 1. Entitlement to service connection for a left knee disorder. The Veteran contends that he injured his left knee during service when he slid several feet and fell down the side of a mountain after losing his balance while carrying a machine gun. He also contends that his left knee disorder preexisted service and was aggravated by service. The Veteran's service treatment records include a July 1966 pre-induction examination and a May 1969 separation examination. His lower extremities were clinically normal at the time of the examinations. On a May 1969 report of medical history, the Veteran reported cramps in his legs and trick or locked knee. The Veteran underwent a VA examination in July 1969. He reported left knee pain and stiffness since he was 12 years old. He stated that his symptoms continued during service and since. He denied any left knee injury or fracture. The Veteran also reported that he sustained a laceration to his left flank when he slid down a hill during service. The physical examination revealed a left flank scar. The examination of the left knee revealed normal findings. An x-ray of the left knee was negative. The examiner diagnosed arthralgia of the left knee. A June 2012 private treatment record showed that the Veteran underwent left total knee replacement due to severe arthritis. In a March 2014 buddy statement, a servicemember recalled that the Veteran injured his knee and scarred his back when he slid down a mountain. In May 2015, the Veteran continued to describe his in-service left knee injury. He reported that the day following the incident he experienced swelling and pain. He stated that he was given pain pills and his knee was wrapped by a medic. During the remainder of his tour he was given pain medication as needed for his left knee symptoms. He stated that his symptoms continued after service and that he used medication to treat the symptoms until his doctor recommended surgery. In May 2015, the Veteran submitted a knee and lower leg conditions disability benefits questionnaire (DBQ). The physician indicated that he/she did not review the Veteran's claims file. The diagnosis was left knee osteoarthritis. The physician noted that the left knee pain began during service and was related to his in-service military duties. The physician stated that the Veteran's left knee disorder worsened during service and that he developed underlying osteoarthritis that led to his current left knee problems. The opinion was that his traumatic ostearthritis was more likely than not caused by the in-service injury. The Veteran was afforded a VA examination in December 2019. The Veteran continued to report that he injured his left knee when he slid down a mountain during service. He also reported that he was treated by a medic and that his left knee continued to bother him during service. The Veteran stated that his left knee pain progressed after service and that he sought medical treatment for the first time in the early 2000s. At that time, he was told he had arthritis. He had a total knee replacement in 2012. The examiner noted that the Veteran's separation examination was normal. The examiner opined that the Veteran's left knee disorder was less likely than not incurred in or caused by service. The examiner gave the following rationale: Since last claim was denied in 2013, there has been no additional evidence to show that preexisting condition was aggravated by service period. C-file shows that [V]eteran indicated that his knee problems started at age 12, then went on to report that in March 1968 on Nui Ba Den Mountain, Vietnam, he slid several feet and fell down the side of the mountain after losing his balance while carrying a machine gun. Although [V]eteran has a left knee condition of total knee replacement 2012 as evidenced in c-file, and c-file also shows that [V]eteran started seeking care with the VA in 2014, after total knee replacement surgery in 2012. Although [V]eteran has a left knee condition of total knee replacement 2012 as evidenced in c-file, however, Veteran's left knee condition is less likely due to or related to service period. A nexus has not been established. The following addendum opinion was provided in October 2020: It is less likely than not that the [V]eteran's current [status post] left knee replacement incurred in or was caused by the fall in March 1968. The [V]eteran underwent left knee replacement due to arthritis in the knee. There is no evidence documented in the [service treatment records] that the [V]eteran's left knee injury in 1968 was of the severity (resulted in fracture or other damage to the knee joint) to result in the development of arthritis. A nexus is not established. Upon consideration of the evidence above, the Board finds that service connection is not warranted for the Veteran's left knee disorder. Regarding the Veteran's claim that his left knee disorder preexisted service and was aggravated by service, the Board notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment. The presumption of soundness applies in this case as no left knee abnormalities were noted on the July 1966 pre-induction examination. In order to rebut the presumption of soundness, VA must demonstrate by clear and unmistakable evidence that a disorder preexisted military service and must demonstrate by clear and unmistakable evidence that a preexisting disorder was not aggravated by military service. 38 C.F.R. § 3.304 (b); VAOPGCPREC 3-03 (July 16, 2003), 69 Fed. Reg. 25178 (May 5, 2004); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). The evidence does not demonstrate that the Veteran's left knee disorder clearly and unmistakably pre-existed service and was not aggravated by service. The Veteran's reports of left knee pain and stiffness prior to service do not constitute clear and unmistakable evidence that he had a left knee disorder that preexisted service. The December 2019 VA examiner's finding that the Veteran's left knee disorder preexisted service was based on the Veteran's reports. The Board consequently finds that the record does not contain clear and unmistakable evidence to show that the Veteran's current left knee disorder preexisted service. Therefore, the presumption of soundness has not been rebutted and the Veteran's claim must be considered a normal claim for service connection without consideration of a pre-existing left knee disorder at the time of entrance into active service. Wagner, 370 F.3d at 1089. Initially, the Board notes that the Veteran's left knee arthritis, which led to his current left knee total replacement, was diagnosed in the early 2000s. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). The evidence of record includes conflicting medical opinions addressing the etiology of the Veteran's left knee disorder. After weighing the evidence, the Board finds that when taken together, the December 2019 and October 2020 VA medical opinions are the most probative of record. The VA examiners took into consideration the Veteran's clinical history and the current examination findings, as well as provided adequate rationale in support of the opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Notably, the VA examiners noted review of the Veteran's claims file, including his service treatment records. On the other hand, the private examiner essentially found that the Veteran developed ostearthritis as a result of his military duties. However, the private examiner did not review the Veteran's claims file, to include the separation examination that showed that his lower extremities were marked as normal at the time of separation from service. Accordingly, the Board finds that the medical opinion provided by the private examiner is less persuasive than the VA medical opinions. Additionally, presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty or on the basis of continuity of symptomology is not warranted in this case. The evidence demonstrates that the Veteran's left knee disorder was diagnosed more than one year after the Veteran's discharge from service and a July 1969 x-ray was negative. 38 C.F.R. § 3.307 (a). Moreover, any allegation of a continuity of left knee symptomatology since service is inconsistent with the evidence of record. As such, presumptive service connection, to include on the basis of continuity of symptomatology is not warranted for his left knee disorder. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The Board has considered the lay statements of record. It is well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current disorder is a matter that generally requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since active military service, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Here, the Veteran is not competent to opine as to the etiology of his left knee disorder because the specific medical issue falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). For these reasons, the Board finds that service connection is not warranted for a left knee disorder. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § § 1155; 38 C.F.R. § § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can 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 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § § 4.21 (2018). In accordance with 38 C.F.R. § §§ 4.1, 4.2, 4.41, 4.42 (2018) and Schafrath v. Derwinski, 1 Vet. App. at 589, the Board has reviewed all evidence of record pertaining to the history of the service-connected disability under appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. In addition, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). As such, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claim. 2. Entitlement to an initial disability rating in excess of 30 percent for PTSD. The Veteran asserts that he is entitled to a higher disability rating for his service-connected PTSD. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 30 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. 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 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. In April 2014, the Veteran described a history of difficult relationships and an inability to trust others. He preferred to stay home. He was previously employed as a security guard, which allowed him to work alone. He had difficulty sleeping and had nightmares about his Vietnam experiences. He reported that he checked his windows and doors whenever he awakened at night. He also looked out of the windows every ten minutes to ensure that he was safe. He stated that he expressed feelings of anger in response to trivial matters. The Veteran was afforded a VA examination in June 2014. His symptoms were depressed mood, anxiety, and chronic sleep impairment. The Veteran and his wife disagreed on his drinking and lack of socializing. He did not have any hobbies and his free time was spent completing yard/house activities, watching television, and reading the newspaper. He gathered with relatives for birthdays and holidays. He stopped attending church. He described a distant relationship with his youngest child and no relationship with his three other children. The Veteran retired from his job as a security guard for an automobile company in 1997 and as a security guard for a school district in 2012. The examiner determined that the Veteran's PTSD caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. In a September 2015 statement, the Veteran reported experiencing anger over trivial matters, depression, tearfulness, isolation, lack of concentration, frequent nightmares, flashbacks, and lack of interest. The Veteran submitted a March 2017 psychiatric disability benefits questionnaire (DBQ). The diagnoses were major depressive disorder and PTSD. His symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The Veteran was married to his current wife for 28 years. He reported marital issues due to his isolation and social paranoia. He had limited contact with his children, grandchildren, and siblings. The Veteran stated that his irritability, social paranoia, and isolation impacted his previous employment. The Veteran had semi-regular suicidal ideation. The psychologist determined that his psychiatric disorder caused total occupational and social impairment. The Veteran's psychiatric disorder significantly impacted his quality of life, interpersonal relationships, interaction with people, and his ability to interact in his community. The Veteran underwent another VA examination in December 2019. He reported struggling with nightmares, sleep maintenance, depression, anxiety, short-term memory problems, focusing, irritability, and low energy. The Veteran spent his time working in the yard, watching sports and movies, and spending time with his wife. The examiner concluded that the Veteran's PTSD caused 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. VA treatment records during this period showed continued treatment for his PTSD. In June 2014, the Veteran endorsed symptoms of alcohol use, isolation, anxiety, sleep impairment, poor appetite, depression, diminished energy, very low interest, frequent nightmares, and guilt. He was emotionally distant to his family. He firmly denied the presence of suicidal ideation. June 2017 VA treatment records showed that he had depression at times and was unable to sleep at night. He reported that he had the support of his wife and sisters. Again, he denied suicidal ideation. November 2018 VA treatment records noted symptoms of erratic sleep, nightmares, anxiety, avoidance, poor concentration, and memory loss. He consumed alcohol three days out of the week. He stated that his wife was very supportive and that he was close to one of his children, but not his other three children. The Veteran denied suicidal ideation and did not endorse symptoms of psychosis. The psychologist found that the Veteran had significant impairment in function. Mental status examinations revealed full orientation, appropriate dress, good hygiene, good eye contact, normal speech, dysphoric affect, variable mood, logical thought process, and fair judgment. The Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 30 percent rating. The Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. Throughout the period on appeal, the Veteran's symptoms included chronic sleep impairment, poor concentration, memory loss, depressed mood, irritability, anxiety, guilt, and shame. He expressed regrets about his parenting and had thoughts about the shortness of life. He denied suicidal ideation. The Veteran reported low motivation and decreased interest. In June 2014, he stated that he lost weight due to his poor appetite. He had very low interest and hardly participated in any activity outside of yardwork. He also had occasional crying spells. In November 2018, he reported that his mood varied depending on the weather. When the weather was cold or cloudy, he was likely to feel depressed. His anxiety was characterized by worry and rumination about the past. He was startled by noise, was on guard, avoided traffic and crowds, disliked people walking behind him, did not like hearing anything related to Vietnam, and avoided funerals. In June 2014, he stated that he felt depression and anxiety nearly every day of the last month. In November 2018, it was noted that his episodes of anxiety were triggered by his health problems. His sleep was interrupted and he slept a total three to four hours at night. He had nightmares about his military experiences about two to three times per week. In June 2014, his nightmares were described as frequent and he described recurrent intrusive thoughts about Vietnam. He was triggered by the news. He felt physical discomfort such as chest pain and tremors whenever he heard load noises or the odor of rotten foods. With regard to memory loss, it was noted that he was forgetful at times and his wife had to write things down for him to remember. The evidence of record shows that the Veteran's PTSD was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, and chronic sleep impairment), and symptoms associated with a 50 percent rating (disturbances of motivation and mood). He also had symptoms that are not listed with a specific rating, such as anger, poor appetite, lack of concentration, and guilt. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. See 38 C.F.R. § 4.126. The evidence does not suggest that these symptoms were present daily. Further, guilt, poor appetite, lack of concentration, and anger are similar to depressed mood and anxiety, which are contemplated by the assigned 30 percent rating. While the Veteran did experience disturbances of motivation and mood, which is contemplated by a 50 percent rating, the evidence overall does not demonstrate the level of impairment associated with a 50 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 30 percent rating. 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 50 percent rating. The criteria for a 50 percent or higher rating are not met and the appeal must be denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. McKinley, 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.