Citation Nr: 21027891 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 15-00 050A DATE: May 7, 2021 ORDER Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with associated depression, cannabis, and alcohol abuse (excluding the periods when the Veteran is in receipt of a 100 percent disability rating) is denied. REMANDED Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left ankle disability, is remanded. FINDING OF FACT For the period from January 31, 2013 (excluding the periods when the Veteran is in receipt of a 100 percent disability rating), the Veteran's PTSD with associated depression, cannabis, and alcohol abuse was productive of occupational and social impairment in most areas. CONCLUSION OF LAW For the period from January 31, 2013 (excluding the periods when the Veteran is in receipt of a 100 percent disability rating), the criteria for a rating higher than 70 percent for PTSD with associated depression, cannabis, and alcohol abuse have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1974 to October 1978. This matter is on appeal from a November 2013 rating decision. The Veteran testified before the undersigned Veterans Law Judge during an October 2018 hearing. The claims were remanded by the Board of Veterans' Appeals (Board) in February 2019. Increased Rating Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a disability with the requirements contained in VA's Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 3.102, 4.3. 1. Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with associated depression, cannabis, and alcohol abuse, (excluding the periods when the Veteran is in receipt of a 100 percent disability rating) is denied. The Veteran is seeking a rating in excess of 70 percent for PTSD with associated depression, cannabis, and alcohol abuse rated under Diagnostic Code 9411. The relevant temporal focus for this disability is one year prior to the date of receipt of the increased rating claim, so from January 31, 2013. 38 C.F.R. § 3.400. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a rating of 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. A total scheduler rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." The Federal Circuit further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment associated with the DC to determine whether a higher evaluation is warranted. Relevant Evidence The Veteran underwent a June 2013 VA Review PTSD Disability Benefits Questionnaire (DBQ). The examiner confirmed diagnoses of PTSD, major depressive disorder, alcohol dependence, cannabis dependence, and nicotine dependence. The examiner stated that it is not possible to differentiate between PTSD and major depressive disorder symptoms. The examiner opined that the Veteran's mental disability causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. He reported he has been unemployed and attributes his inability to work due to marijuana, impaired concentration, memory, and focus, a and to his health. He appeared appropriately dressed with a neat and clean appearance. He was alert and oriented to person, place, time, and situation. His speech was normal, his language was logical and coherent. He denied any current suicidal or homicidal ideation although he reported the experience of recurrent and fleeting suicidal and homicidal thoughts with no associated intent. No evidence of psychosis. He described "hearing" his foster mother speak with him but with further inquiry he clarified that he was hearing his own internal though processes rather than an audible voice. His memory appears to be mildly impaired. He described frequent night sweats and is talking to himself a lot more. He does not sleep if he does not take his medications as prescribed. He described recurrent intrusive recollections with exposure to trauma cues. He experiences flashbacks approximately 2 times per month and described hiding in his friend's basement following these flashbacks. He endorsed physiological reactivity including symptoms consistent with panic attacks averaging 2-3 times per month. He described a history of fleeting and recurrent suicidal ideation with one specific plan and gesture a year ago. He reported difficulty with managing his anger and indicates that he will lash out a lot verbally. The Veteran underwent a July 2016 VA Review PTSD DBQ. The examiner confirmed a diagnosis of PTSD with associated depression. The examiner opined that the Veteran's mental disability causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported hopelessness, worthlessness, low self-esteem, irritability, lack of interest and pleasure, lack of energy and fatigue, concentration problems, isolation, and social withdrawal. He admitted to having passive suicidal ideation on month ago and at times, passive suicidal ideation without plans occur twice per week. He experiences anxiety-related symptoms including excessive apprehension and worry, muscle tension, nightmares and night terrors, flashbacks/re-experiencing events approximately once per month, intrusive memories, avoidance of internal and external cues ot the stressor, hyper startle response, and hypervigilance. The Veteran reported occasional panic attack symptoms of breathing difficulty, palpitations, sweating and trembling and fears of having a heart attack/dying. He reported that he has these symptoms approximately twice per month. The examiner noted that he was well-groomed, and of coherent and goal-directed thought process with no evidence of hallucinations, delusions, or paranoia. At the October 2018 Board Hearing, the Veteran reported that he is unemployable due to his PTSD. He reported that he seldom leaves the home because he has a problem being around groups of people. He now gets panic attacks twice a week. He has nightmares and flashbacks sometimes when he leaves his house. He rarely sleeps. The Veteran underwent a February 2021 VA Review PTSD DBQ. The examiner confirmed a diagnosis of PTSD and major depressive disorder. The examiner reported that the Veteran expressed passive suicidal ideation but convincingly denied active suicidal ideation plan/intent. The examiner stated that he cannot determine the individual impact of each symptom because the symptoms of the disorders overlap. The examiner opined that the Veteran's mental disability causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran's reported symptoms include depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation. The examiner reported that the Veteran was neatly groomed and appropriately dressed. His speech was normal. There was no evidence of psychosis or delusional ideations. He denied active suicidal or homicidal ideation. Legal Analysis and Conclusion For the period from January 31, 2013 (excluding the periods when the Veteran is in receipt of a 100 percent disability rating), the evidence reflects that the Veteran's PTSD with associated depression, cannabis, and alcohol abuse was productive of occupational and social impairment with deficiencies in most areas, which best approximates a 70 percent evaluation, and not higher. As an initial matter, the Board is precluded from differentiating between the symptoms of the Veteran's PTSD with associated depression, cannabis, and alcohol abuse in the absence of clinical evidence that clearly shows such a distinction. See Mittleider v. West, 11 Vet. App. 1818, 182 (1998). There is no such medical evidence of record to show a distinction between the Veteran's diagnosed PTSD with associated depression, cannabis, and alcohol abuse. As such, symptoms related to the Veteran's PTSD with associated depression, cannabis, and alcohol abuse will all be considered in his claim for an increased rating. See Mittleider v. West, 11 Vet. App. 1818, 182 (1998); and see also 38 C.F.R. § 3.102. Turning to the merits of the claim, at the June 2013 VA examination, the Veteran reported the experience of recurrent and fleeting suicidal and homicidal thoughts and difficulty with managing his anger and indicated that he will lash out a lot verbally. At the July 2016 VA examination, he reported suicidal ideation without plans that occur twice per week, nightmares and night terrors, flashbacks/re-experiencing events approximately once per month, intrusive memories, avoidance, hyper startle response, and hypervigilance. At the October 2018 Board Hearing, the Veteran reported that he seldom leaves the home because he has a problem being around groups of people. Moreover, at the February 2021 VA examination, the Veteran expressed passive suicidal ideation but convincingly denied active suicidal ideation plan/intent, depressed mood, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. These symptoms of suicidal ideation, impaired impulse control, and inability to establish and maintain effective relationships are squarely accounted for in the 70 percent evaluation criteria. See also 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Moreover, a 100 percent rating is not warranted, as the preponderance of the evidence is against a finding of total occupational and social impairment for this period. While the Board notes that the Veteran has multiple episodes of suicidal ideation, to qualify for a 100 percent evaluation, there must be evidence of a persistent danger of hurting oneself, and the medical and lay evidence of record do not support that such a symptom or similar symptom exists for this time period. Here, at the June 2013 VA examination, he reported fleeting suicidal and homicidal thoughts with no associated intent; at the July 2016 VA examination, he reported passive suicidal ideation without plans; and at the February 2021 VA examination, the examiner reported that the Veteran convincingly denied active suicidal ideation plan/intent. While the Veteran described having memory or attention/concentration problems, there is no evidence that the Veteran cannot remember his name or the names of family members, or is experiencing the type of memory loss that can be likened to this extent accounted for in the 100 percent rating criteria. The Board finds that the Veteran's memory loss is mild and that such impairment of short and long-term memory is specifically contemplated by even lower evaluations, such as the 50 percent rating criteria, which specifically account for the impairment of short and long-term memory involving the retention of only highly learned material or forgetting to complete tasks, which is the type of impairment complained of by the Veteran. Moreover, no examiner found, no medical records show, and the Veteran himself did not assert, that the Veteran experienced any symptom specifically contemplated under the 100 percent rating of DC 9411, to the requisite levels of frequency, severity, and duration that would allow for a higher rating of 100 percent for this period. See also Vazquez-Claudio, 713 F.3d at 117. All three VA examiners reported that the Veteran was alert, oriented to person, time and place, appropriately dressed, and without any psychosis or hallucinations. In sum, the evidence shows that the overall impairment caused by the Veteran's PTSD with associated depression, cannabis, and alcohol abuse symptomatology, while not squarely within the symptomatology for a 70 percent rating, as his symptomatology is also consistent with criteria in ratings lower than 70 percent, more nearly approximates occupational and social impairment with reduced reliability and productivity, for the period from January 31, 2013 (excluding the periods when the Veteran is in receipt of a 100 percent disability rating). Furthermore, the Board has also considered the Veteran's statements regarding his PTSD with associated depression, cannabis, and alcohol abuse symptoms. The Veteran's statements are competent evidence as to the symptoms of his PTSD with associated depression, cannabis, and alcohol abuse as this comes to him through his senses. Moreover, his statements are credible to the extent that they are consistent with the medical evidence of the record. However, his statements are not competent evidence as to a Evidence concerning the nature and extent of the Veteran's PTSD with associated depression, cannabis, and alcohol abuse symptoms has been provided by the medical personnel who have examined him at various times during the current appeal and who have rendered pertinent opinions in conjunction with the physical evaluations. The medical findings as provided in the examination reports directly address the criteria under which this type of disability is evaluated. The Board, therefore, finds the medical findings to be of a greater probative value as to the current severity of the Veteran's PTSD with associated depression, cannabis, and alcohol abuse symptoms than his statements. Given such, the Board does not find that a rating of 100 percent, as the record stands, is warranted. In light of the above, the Board finds that for the period from January 31, 2013 (excluding the periods when the Veteran is in receipt of a 100 percent disability rating), the preponderance of the evidence reflects that the Veteran's disability has been productive of occupational and social impairment with deficiencies in most areas, warranting a higher initial rating of 70 percent, but no higher, for this period. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left ankle disability, is remanded. Per the February 2019 Board remand, an examination and etiology opinion for the right knee disability was obtained in February 2021. Upon review of the February 2021 opinion, however, the Board finds this opinion inadequate. First, the Veteran has current diagnoses of posterior cruciate ligament tear, mild degenerative joint disease, bilateral patellofemoral osteoarthritis, and lateral meniscus tear; however, the February 2021 VA examiner did not address and consider, much less opine of the etiology these diagnoses, and noted and opined only on the "s/p R knee surgery, s/p R knee arthroscopy, and acute R knee cyst removal with residual scar." Secondly, the examiner based his negative etiology opinion on the lack of concurrent service medical records reporting or indicating any right knee disability, when the lack of contemporaneous medical records does not, in and of itself, render lay evidence incredible or serve as an "absolute bar" to service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Third, the examiner indicated that the October 2018 Board Hearing transcript was not available for him to review. Therefore, the opinion was rendered on an incomplete record. Moreover, it appears that instead of providing a secondary etiology opinion, the examiner provided an opinion that treated the knee disability as a preexisting condition, which is not the case here. Furthermore, in June 2019, the Court issued a decision in Ward v. Wilkie, which affects the Veteran's claim. 31 Vet. App. 233 (2019). In Ward, the Court held that secondary service connection is warranted for "any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions... regardless of its permanence." Id. at 239. Upon review of the opinion, the Board finds that the February 2019 etiology opinion does not comport with the holding in Ward. Finally, additional evidence pertaining to the claims on appeal were submitted by the Veteran's representative on a compact disc. On remand, those records should be electronically uploaded to the Veteran's VBMS file. The matters are REMANDED for the following action: 1. Upload documents from the compact disc provided by the Veteran's attorney to the electronic claims file, readjudicate the claims. 2. After step 1 is completed, the Veteran for an examination by an appropriate new examiner to determine the nature and etiology of any diagnosed right knee disability. The RO should ensure that the October 2018 Board Hearing transcript is available for the examiner to review. The examiner should identify all current diagnoses pertinent to the Veteran's claimed right knee disability, to include posterior cruciate ligament tear, mild degenerative joint disease, bilateral patellofemoral osteoarthritis, and lateral meniscus tear. The examiner should also explicitly address and consider any current diagnoses that may have resolved during the appeal period. For the purpose of this claim, the examiner is advised that a current disability is any disability which existed when the Veteran filed his claim (February 22, 2008) or which existed at any time during the pendency of the claim. After reviewing the claims folder and examining the Veteran, for each diagnosis, the examiner is specifically instructed to provide the following information: (a) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's right knee disability BEGAN IN or is related to his time in the service, yes or no? (b) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's disability was: (i) CAUSED BY HIS SERVICE-CONNECTED LEFT ANKLE DISABILITY, (ii) any other service-connected disability, or (iii) medicine taken for his other service-connected disabilities, yes or no? (c) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's right knee disability underwent any incremental increase in disability, regardless of its permanence, due to: (i) the service-connected LEFT ANKLE DISABILITY, (ii) any other service-connected disability, (iii) medicine taken for his other service-connected disability, yes or no? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST "CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO." SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATECORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.