Citation Nr: 21027952 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-27 355 DATE: May 7, 2021 ORDER Entitlement to an initial rating of 50 percent, but no higher, for PTSD is granted. REMANDED Entitlement to service connection for right knee condition is remanded. Entitlement to service connection for residuals of traumatic brain injury (TBI) is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran's PTSD symptoms have resulted in disturbances of motivation and mood; they do not more closely approximated occupational and social impairment with deficiencies in most areas or an inability to establish or maintain effective relationships. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation of 50 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 (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION On initial review of this case, the Board denied an initial rating in excess of 30 percent for the PTSD and denied service connection for a right knee condition and residuals of TBI. See 03/18/2019 BVA Decision. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). In September 2020, while the appeal was still pending, the Veteran, through counsel, and the Secretary, VA, entered into and submitted a Joint Motion for Remand (JMR) to the Court that asked for vacation in part of the 2019 Board decision and remand to the Board. See 09/11/2020 CAVC Decision, P. 2-8. In an Order also dated in September 2020, the Court granted the JMR, vacated the March 2019 Board decision in part, and remanded the case to the Board for further review consistent with the JMR. Id. P. 9. 1. Entitlement to an initial rating in excess of 30 percent for PTSD is denied. 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). 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. As explained below, the Board concludes that the Veteran's symptoms approximate the level of impairment contemplated for a disability rating of 50 percent, but no higher. 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). 38 C.F.R. § 4.130. 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. Id. 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. Id. A 100 percent rating is assigned when symptoms such 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 cause total occupational and social impairment. Id. Discussion An April 2012 VA examination report (04/16/2012 VA Examination) reflects a finding of PTSD manifested by anxiety and chronic sleep impairment. The January 2016 VA examination report (01/25/2016 C&P Exam, 1st Entry) reflects that the Veteran's PTSD is manifested by symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss, such as forgetting names, directions or recent events. The January 2016 VA examiner noted that the Veteran continued to endorse symptoms "generally consistent" with those in April 2012. Buddy statements of record relate to symptoms of suspected suicidal ideation and withdrawal, i.e., "decreased socialization." Suicidal ideation is a symptom associated with a 70 percent rating. In the JMR, the parties agreed that the reasons and bases provided in the Board's 2019 decision did not fully discuss the evidence of suicidal ideation and omitted the Veteran's reports of suicidal ideation noted in his treatment records maintained by the penal institution where he is incarcerated. The agreed-upon remedy was that the Board be required to provide an adequate statement of reasons and bases. See 09/11/2020 CAVC Decision, P. 5-6. Regarding the buddy statements of record, these did not contain first-hand evidence of suicidal ideation. Rather, one of the Veteran's friends simply noted his belief that the Veteran was suicidal. While this individual is competent to report events that he observes and to report on statements made to him by the Veteran, he is not competent to render medical findings and thus his mere opinion that the Veteran was "suicidal" is not probative here. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The JMR asserted that the Veteran's outpatient records note several entries of the Veteran's reports of suicidal ideation. Id. P. 4. The Board notes that the sole outpatient records in the file are those obtained from the penal facility where the Veteran is incarcerated. Further, a number of the entries are redundant and could be mistaken for separate entries. The Board notes a March 2013 entry in those records that documents the Veteran's report of fleeting thoughts of committing suicide; he denied ever having a serious intent to do so. See 08/21/2015 Medical Treatment Facility-Non-Government Facility, P. 23. Numerous subsequent entries from later in March 2013 to 2015, however, note that the Veteran consistently denied any suicidal or homicidal ideation, and the therapist noted the absence of evidence of suicidal or homicidal ideation. See id., P. 7, 8, 10-11, 13, 18, 19, 22, 24. Suicidal ideation is a symptom associated with a 70 percent rating, which the Board notes is contemplated by the 70 percent criteria and is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Nonetheless, based on the evidence set forth above, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 70 percent or 100 percent disability ratings. In addition to the several outpatient entries that document the Veteran's consistent denials of suicidal or homicidal ideation, he did not report suicidal ideation during two separate VA examinations. More importantly, the Board notes that the mere number of references to such ideation is not dispositive of the issue. Rather, the salient question is the extent to which the ideation, however frequent, impairs the Veteran socially and occupationally. Here, there is no indication that the symptom in question impacted the Veteran socially or occupationally. However, the Board accepts the lay statements describing the Veteran as isolative and withdrawn, and finds that these are indicative of disturbances in motivation and mood. Overall, resolving doubt in the Veteran's favor, the disability picture at issue is found to be commensurate with a 50 percent rating throughout the period on appeal. However, a rating in excess of this amount is not warranted. Mental status examinations in VA examinations indicate that the Veteran was dressed appropriately with a euthymic mood. His cognitive functioning was intact, and he was able to recall past and recent events. Thought processes were logical and linear. He was oriented times three, and his judgment was grossly intact. There was no psychosis. He had some mild memory impairment. Based on the examination results noted above, deficiencies in most areas have not been shown, nor is there a showing of inability to establish and maintain effective relationships. In the 2016 examination he noted starting activities in prison for Veterans and he noted that while he did not like being in groups he liked to talk with people one-on-one. Again, the Board acknowledges the buddy statements indicating that the Veteran was withdrawn; these are found to support a 50 percent rating but not higher. In short, the Board resolves doubt and awards a 50 percent rating for the Veteran's PTSD. However, the criteria for a 70 percent or higher rating are not met and the appeal must be denied. 38 C.F.R. § 4.1, 4.130, DC 9411. Since the preponderance of the evidence is against a rating in excess of 50 percent, there is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); see also 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service conn Entitlement to service connection for residuals of TBI is remanded. 2. Service connection for right knee disorder is remanded. The consensus of the parties in the JMR is that the March 2019 Board decision noted that a VA examination was conducted on the right knee when in fact there was no examination. Without lengthy discussion, the Board finds that the place and circumstances of the Veteran's service, an entry in the service treatment records (STRs), and his lay testimony trigger the low threshold for a medical review. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159(c)(4). The consensus on the TBI issue is that the March 2019 decision did not adequately explain why the scheduled TBI examination was cancelled. The relevant document notes that it was canceled because the examination would have to be conducted at the penal facility, and no traveling neurologist was available. See 07/20/2015 C&P Exam, 1st Entry. Another attempt will be made to get an examination. The matters are REMANDED for the following action: 1. Send the claims file to an appropriate clinician for a medical nexus review of the evidence related to the right knee claim. Since there is a paucity of documented treatment records, the Board suggests that the Agency of Original Jurisdiction (AOJ) send the file to a physician. Ask the clinician to opine on whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's currently diagnosed right knee disorder, to include traumatic arthritis, is causally related to his active service. Inform the clinician that the Veteran's lay reports must be considered, and that they may not be summarily rejected solely because of the absence of contemporaneous medical documentation. Further, caution the clinician that the Veteran's lay assertions related to his right knee are not in one location in the claims file but, instead, are contained in several lengthy statements. The clinician must provide a full explanation for all findings and opinions rendered. If the clinician advises that an examination is needed to provide the requested opinion, then the AOJ will take prompt steps to arrange an examination at the penal facility if the Veteran is still incarcerated. 2. After the above is complete, send the claims file to an appropriate clinician for a neurological nexus review. As with the right knee issue, the Board suggests that the AOJ send the file to a physician. Ask the clinician to opine on whether it is at least as likely as not (at least a 50 percent probability) that the Veteran has residuals of a TBI and, if so, whether it is at least as likely as not that any manifested TBI residuals are causally connected to his active service. Inform the clinician that the Veteran's lay reports must be considered, and that they may not be summarily rejected solely because of the absence of contemporaneous medical documentation. Further, caution the clinician that the Veteran's lay assertions related to his right knee are not in one location in the claims file but, instead, are contained in several lengthy statements. The clinician must provide a full explanation for all findings and opinions rendered. If the clinician advises that an examination is needed to provide the requested opinion, then the AOJ will take prompt steps to arrange an examination at the penal facility if the Veteran is still incarcerated. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.