Citation Nr: 21027796 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 13-30 093 DATE: May 6, 2021 ORDER The claim for service connection for bilateral hearing loss is dismissed. The claim for service connection for a low back disability is dismissed. The claim for a compensable rating for erectile dysfunction is dismissed. Service connection for gastroesophageal reflux disease (GERD) is denied. A disability rating of 70 percent, but no higher, for PTSD is granted, subject to the provision governing the award of monetary benefits. A total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED The claim for a compensable rating prior to May 7, 2018 and in excess of 10 percent therefrom for a right knee disability is remanded. FINDINGS OF FACT 1. The Veteran knowingly withdrew his claims for service connection for bilateral hearing loss and low back disability and his claim for an initial compensable rating for erectile dysfunction during a February 2020 Board hearing. 2. The Veteran does not have GERD as a result of his service. 3. The Veteran's acquired psychiatric disorder causes occupational and social impairment with deficiencies in most areas, but has not caused total occupational and social impairment. 4. Given the increase in his PTSD rating to 70 percent, the Veteran meets the schedular rating criteria for TDIU, and his service-connected PTSD is found to prevent him from securing and maintaining gainful substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claim for service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of the claim for service connection for low back disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for dismissal of the claim for a compensable rating for erectile dysfunction have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for service connection for GERD have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.655(b). 5. The criteria for a disability rating of 70 percent for the Veteran's PTSD have been met, but the criteria for a total disability rating have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 6. The criteria for TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2006 to January 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified before the undersigned VLJ. The parties also clarified one of the issues as entitlement to service connection for GERD (previously claimed as entitlement to service connection for pharyngitis). A copy of the hearing transcript has been associated with the claims file. Regarding the claim for service connection for GERD, the Board notes that the RO denied the claims under the Appeals Modernization Act (AMA) system in a February 2020 rating action; and the Veteran timely filed a VA Form 10182 (initiating an appeal to the Board under the AMA system). However, at a February 2020 Legacy Board hearing, the undersigned VLJ took testimony on this issue based on a pending legacy perfected appeal. Thus, the undersigned VLJ has retained jurisdiction of this appeal in the Legacy system. Withdrawn Issues The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. During the February 2020 hearing before the undersigned, the Veteran withdrew his appeal with respect to the claims for service connection for bilateral hearing loss and low back disability and entitlement to a compensable rating for erectile dysfunction. Transcript (T.) at page (pg.) 2)). Hence, there remains no allegations of errors of fact or law for appellate consideration with respect to these issues. Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed. Service Connection for GERD. The Veteran asserts that he has GERD due to his service. During his February 2020 hearing, the Veteran testified that he started having symptoms during his service for which he was prescribed medication. He testified that his symptoms have continued since his active service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An alternative method of establishing the second and third elements of service connection for those disabilities identified as "chronic" under 38 C.F.R. § 3.309 (a), such as sensorineural hearing loss, is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). The Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307, 3.309(a). Organic diseases of the nervous system, including peptic ulcers, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). GERD is not included in this list. At the outset, the Board notes that the Veteran has been diagnosed as having GERD. See May 2018 Esophageal Conditions Disability Benefits Questionnaire (DBQ). As the Veteran does not have a diagnosis of an ulcer disorder, and as GERD is not considered a chronic disease, an award under the theory of presumptive service connection is not applicable in this case. See 38 C.F.R. §§ 3.307, 3.309. Turing to the analysis of the claim's direct service connection theory, the Board finds that the weight of the evidence is against a nexus of the Veteran's GERD to his period of active military service. First, and contrary to the Veteran's testimony, the Board notes that the Veteran's service treatment records (STRs) are negative for any treatment for GERD to include being prescribed any medication. It was frequently noted that the Veteran was not experiencing any gastrointestinal symptoms. Moreover, the earliest medical evidence of any reflux comes approximately in 2013, several years after separation from service. Second, there is no competent evidence of record which associates the Veteran's GERD with his military service. To this end, the Veteran failed to report for a scheduled VA examination in connection with his claim in February 2020, and neither he, nor his attorney, have provided any good cause for his absence. The Board wishes to emphasize that "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); 38 C.F.R. § .3.655(b). "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). His failure to attend the scheduled examination frustrates the Board's ability to adjudicate his claim and it is, therefore, denied. 38 C.F.R. § 3.655(b). Moreover, the Veteran's reported testimony that he received treatment during service for GERD, to include medications prescribed therefor, is unsupported by the STRs, which, as noted above, do not contain any findings or complaints related to GERD. The Board finds the Veteran's STRs, which are contemporaneous to the period at issue, more probative than the Veteran's 2020 testimony made in conjunction with a claim for compensation. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). Consequently, for the above reasons, the Board finds that the Veteran's lay statements-that the symptoms he currently suffers from are the same symptoms he had during service and that such have been chronic and continuous since service not to be credible. The Veteran is not competent to provide a nexus opinion in this case. 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); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Accordingly, as the evidence does not support a finding that the Veteran's GERD was incurred in or otherwise the result of his military service, service connection for a gastrointestinal disorder, to include GERD, is denied. Rating for PTSD in excess of 30 percent The Veteran was granted service connection for PTSD by a December 2017 rating decision and assigned an initial 30 percent rating, effective January 3, 2010 (the date following the Veteran's discharge from service). The Veteran disagreed with the 30 percent evaluation assigned, asserting that he is entitled to a higher rating. The Board finds that an initial 70 percent rating is warranted for the Veteran's service-connected PTSD. However, at no time have the criteria for a 100 percent schedular rating been met. Under the General Rating Formula for Mental Disorders, a 50 percent evaluation is assigned when a veteran's mental disability causes 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is assigned when a veteran's mental disability causes 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); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a veteran's mental disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran's psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency must assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App. at 442 (2002). The Veteran's actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Here, the Veteran's treatment records and statements indicate that he has experienced a number of symptoms as a result of his PTSD, notably: difficulty sleeping due to nightmares; hypervigilance; hyper startle; flashbacks; depression; anxiety; irritability; and anger. The Veteran's mother maintained in a written statement that the Veteran was continuously angry and that it has impacted his ability to retain employment; had been suicidal in the past; had difficulty getting along with others; and, was defensive. The Veteran's mother's accounts are supported, in part, by an April 2015 VA treatment record reflecting that the Veteran had had passive suicidal thoughts during the previous week and had written a suicide note several years previously which he had kept as a reminder of how his death would affect his family. Other evidence in support of the Veteran's claim is his February 2020 hearing testimony. The Veteran credibly testified before the undersigned that since service, he had had suicidal thoughts, to include having written suicidal notes on previous occasions. He stated that he was not currently (then) having homicidal ideations, but that he did experience auditory and visual hallucinations (e.g., heard voices and saw shadows). He related that he had memory problems. The Veteran testified that his PTSD affected his ability to maintain employment because he frequently called in sick and was unable to relate to others. T. at pages (pgs.) 3-7)). In an April 2020 statement, Dr. J.R. related that the Veteran had last worked in 2016 hauling construction supplies; that he had had ongoing problems with co-workers due to excessive irritability; and, that he had quit his last job secondary to a family illness (ie., he became his son's caregiver). Dr. J.R. noted that the Veteran did not exhibit any suicidal or homicidal delusions, or any florid of underlying psychopathology, was oriented in all spheres, and demonstrated a constricted affect. Dr. J.R. maintained that the Veteran is psychologically impaired to an extent that he is unable to work in a higher capacity. Dr. J.R. concluded that the Veteran's overall level of psychological disability is "Mildly-to-Moderately Impaired," and that his [disability] rating should be reconsidered. Upon review of the record, the Board finds that the evidence supports a 70 percent disability rating of PTSD for the Veteran's psychiatric disability. The Veteran's symptoms (as described above) most closely approximate the criteria for occupational and social impairment with deficiencies in most areas. Therefore, a disability rating of 70 percent is granted. As noted above, a 100 percent schedular rating requires that total social and total occupational impairment be shown. Moreover, it is not just the symptoms that are present, but rather it is how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Here, the Veteran's psychiatric symptomatology has clearly caused significant impairment, but it cannot be said that he experienced total social impairment. However, a 70 percent rating contemplates the inability to establish and maintain effective relationships. Here, the Veteran currently is his son's caregiver. As such, it is clear that the Veteran is capable of some level of social interaction and therefore it cannot be said that his psychiatric disorder has resulted in total occupational and total social impairment. Accordingly, a disability rating of 70 percent rating, but no higher, is granted for the Veteran's PTSD. TDIU Entitlement to a TDIU rating is granted. The Veteran contends that he is entitled to TDIU. The Veteran reported that he is unable to work due to his PTSD symptoms and medications prescribed therefor. As this decision grants a rating of 70 percent for the Veteran's service-connected PTSD, the Veteran has met the schedular rating criteria for TDIU. The record indicates that he was substantially gainful employed until 2015. He reported that he did not leave his last job as a result of his PTSD. As noted above, the Veteran stated that he quit his last job secondary to a family illness (ie., he became his son's caregiver). However, the Veteran, along with his mother, have stated that the Veteran has anger outbursts and he cannot get along with others. Dr. J.R. maintained that the Veteran is psychologically impaired to an extent that he is unable to work in a higher capacity. Having reviewed the evidence and received the Veteran's testimony, the Board concludes that the Veteran's PTSD prevents him from obtain or maintain substantially gainful employment. As such, TDIU is granted. REASONS FOR REMAND During the appeal period, the Veteran's right knee disability has been assigned a noncompensable rating for the period prior to May 7, 2018 and in excess of 10 percent therefrom. The Veteran contends that higher ratings are warranted for the prescribed periods on appeal. At the Veteran's most recent VA examination in May 2018, the Veteran indicated that he occasionally used a brace for his right knee disability. During the hearing before the undersigned in February 2020, the Veteran testified that his knee popped, and that he used a cane. T. at pg. 10. The Board notes that, effective February 7, 2021, VA amended the criteria for rating musculoskeletal system and muscle injuries disabilities. See 83 Federal Register 76453 (November 30, 2020). VA published in the Federal Register the proposed rule for Schedule for Rating Disabilities: musculoskeletal system and muscle injuries on November 30, 2020. The summary in the Federal Register notes that the purpose of this revision is to ensure that the schedule uses current medical terminology and provided detailed and updated criteria for the evaluation of the musculoskeletal disabilities. The revised changes effected criteria for instability of the knee under Diagnostic Code (DC) 5257. The Veteran's service-connected right knee disability is rated under Diagnostic Code (DC) 5260. 38 C.F.R. § 4.7a, DC 5260. As the medical record suggests that the Veteran may have experienced instability of the right knee for which he occasionally used a brace and cane, DC 5257 is potentially for application with respect to his claim. Thus, the Board finds that to evaluate the nature and severity of the Veteran's service-connected right knee disability a new examination fully and fairly, is required. The matter is REMANDED for the following action: Schedule the Veteran for a VA orthopedic examination to evaluate the severity of his service-connected right knee disability. The examiner should provide an assessment of the current nature of the Veteran's right knee disability. Accordingly, the examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the condition. Also, all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups should be reported. If for any reason the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. The VA examiner should note the revised changes of the criteria for rating musculoskeletal system and muscle injuries disabilities, effective February 7, 2021, to include the change in criteria for instability of the knee under Diagnostic Code 5257. With regard to Diagnostic Code 5257, the examiner should consider: a) the extent of any sprain or ligament tear (and repair thereof), b) the use of assistive devices (e.g., a cane, crutches, or a walker), c) the need for bracing for ambulation, and d) the extent and degree of any current instability. The VA examiner should also note the lay statements by the Veteran, to include his testimony from the February 2020 Board hearing that his right knee pops and that he occasionally used a brace and cane for stability. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.