Citation Nr: 21029375 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-24 757 DATE: May 13, 2021 ORDER An increased rating for PTSD rated as 50 percent disabling prior to March 13, 2020, and as 70 percent disabling therefrom is denied. Service connection for a low back disability is granted. Service connection for a bilateral ankle disability is granted. REMANDED The claim for service connection for a left knee disability is remanded. FINDINGS OF FACT 1. Prior to March 13, 2020, the Veteran's PTSD is shown to have been productive of symptoms that include anxiety, sleep difficulties, nightmares, and irritability; the Veteran's PTSD is not shown to have resulted in occupational and social impairment with deficiencies in most areas. 2. From March 13, 2020, the Veteran's PTSD is shown to have resulted in occupational and social impairment with deficiencies in most areas, but has not caused total occupational impairment and total social impairment. 3. The weight of the evidence supports the conclusion that the Veteran's lumbar spine and bilateral ankle disabilities are related to his military service. CONCLUSIONS OF LAW 1. Prior to March 13, 2020, the criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9411. 2. For the period from March 13, 2020, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for service connection for a lumbar spine disability have been met. 38U.S.C. §1110; 38 C.F.R. §3.303, 3.307, 3.309. 5. The criteria for service connection for a bilateral ankle disability have been met. 38U.S.C. §1110; 38 C.F.R. §3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1997 to November 2008, to include service in Afghanistan from March 8, 2005 to March 7, 2006. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2020, the Veteran was afforded a videoconference hearing before the undersigned. A transcript of the hearing has been associated with the claim file. These matters were most recently before the Board in April 2020. At that time, the Board remanded the appeal to obtain the Veteran's complete service personnel records/service treatment records, to specifically include his periods of deployment to Germany and Afghanistan. Many personnel records were associated with the record in September 2020, but many service treatment records remain missing. At this time, the Board would like to take a moment to discuss the Veteran and his contributions to the safety and security of this nation. A review of the Veteran's service personnel records leaves the reader in awe of the Veteran's achievements throughout his time in military service. He was awarded numerous Army Commendation Medals, a Purple Heart, and several Meritorious Achievement Awards. It is clear that he had a deep commitment to both the Army and the soldiers who served under him. One personnel record notes that the Veteran conducted more than 200 combat missions, and more than 500 security sweeps while deployed abroad. The Board is truly appreciative of the Veteran's courageous service. The "combat presumption" provides that in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. In a November 2020 rating action, the RO assigned a 70 percent rating to the Veteran's PTSD, effective March 13, 2020, the date he testified before the undersigned that his PTSD had increased in severity. Since this increase did not constitute a full grant of the benefit sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). i. A rating in excess of 50 percent for PTSD prior to March 13, 2020, and in excess of 70 percent therefrom is denied. The Veteran's PTSD has been evaluated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under 38 C.F.R. § 4.130, DC 9411, a 50 percent rating is warranted when an acquired psychiatric 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; difficulty in establishing and maintaining effective work and social relationships. Id. Under 38 C.F.R. § 4.130, DC 9411, a 70 percent rating is assigned when an acquired psychiatric 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 ideations; obsessional rituals that 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. Under 38 C.F.R. § 4.130, DC 9411, a 100 percent schedular evaluation is warranted when an acquired psychiatric 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; 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 of names of close relatives, own occupation, or own name. Id. Although some of the Veteran's recorded symptoms are not specifically provided for in the ratings schedule (e.g., such symptoms as nightmares), the symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held 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. Id. at 118. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. Prior to March 13, 2020 The Veteran seeks a rating in excess of 50 percent for his PTSD for the period prior to March 13, 2020. Of note, the March 13, 2020 was the date the Veteran provided his testimony before the Board. It is also noted that the Veteran has argued that the 70 percent rating should go back earlier, as he has experienced the same level of psychiatric symptomatology for many years. The Board finds that the weight of the evidence is against a rating in excess of 50 percent prior to March 13, 2020. In reaching this conclusion, the Board acknowledges the Veteran's spouse's statement, received in September 2015, reflecting that his PTSD symptoms included anger; night terrors; paranoia; and, depression. The Veteran contends that he lost many jobs secondary to his depression, and that he did not have a relationship with any family or friends. The clinical evidence, notably a September 2014 VA examination report, reflects that the examiner characterized the Veteran's PTSD as causing disturbances of motivation and mood characterized by depressed mood, anxiety, and chronic sleep impairment. There was no evidence of any suicidal ideation. The VA examiner noted that although the Veteran displayed anger, there was no evidence of any violence. Overall, the VA examiner concluded that the PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. While the Veteran indicated that he and his second spouse had discussed separation, they had remained together. The Veteran reported having a good relationship with his child from his first marriage, that he enjoyed riding his bicycle, and that he liked his dog. He reported that his activities outside the home were limited secondary to him being uncomfortable around people. He reported that he had been employed as a stocker/unloader in a warehouse since April 2014, and that he was working on his bachelor's degree full-time. VA treatment records for the period on appeal reflect that the Veteran had sought continued treatment for his PTSD symptoms, and contain clinical findings similar to those noted in the September 2014 VA examination report. Overall, the Board finds that the evidence most closely corresponds to a 50 percent evaluation for the service-connected PTSD for the period prior to March 13, 2020. Overall, the Veteran has reported having sleep difficulties, nightmares, and irritability. There is little or no evidence of impairment in speech, thought process, or thought content, orientation, judgment, insight, hallucinations, inappropriate behavior, panic attacks, homicidal or suicidal thoughts, or episodes of violence. In summary, the evidence is insufficient to show that the Veteran has such symptoms as suicidal ideation with plan or intent, obsessional rituals (other than "liking things to be neat"), defects in speech, near-continuous panic or depression which affect his ability to function independently, appropriately, and effectively; impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, or difficulty in adapting to stressful circumstances, nor are there other psychiatric symptoms shown to have resulted in such impairment, such that a 70 percent rating is warranted for the Veteran's PTSD for the period prior to March 13, 2020. See 38 C.F.R. § 4.130 ; Vazquez-Claudio. Based on the foregoing, the Board concludes that the Veteran's service-connected PTSD is not manifested by symptomatology that approximates, or more nearly approximates, the criteria for a rating in excess of 50 percent under DC 9411 prior to March 13, 2020. See 38 C.F.R. § 4.7. The Board acknowledges the Veteran's contentions that the rating should go back earlier, but the fact remains that the contemporaneous evidence, as discussed above, did not support a rating in excess of 50 percent. Accordingly, the weight of the evidence is against a rating in excess of 50 percent prior to March 2002, and to this extent the claim is denied. Period from March 13, 2020 The Board finds that the criteria for a rating in excess of 70 percent for PTSD for the period from March 13, 2020 have not been met. The clinical findings during the relevant time period on appeal, notably during an October 2020 VA examination, do not show that the Veteran's PTSD was manifested by such symptoms as gross impairment in thought processes or communication; persistent delusions, or hallucinations; grossly inappropriate behavior; or persistent danger of hurting self or others. The October 2020 VA examiner concluded that the Veteran's symptoms are productive of difficulty in adapting to stressful circumstances, including work or a worklike setting. This most closely corresponds to no more than a 70 percent evaluation under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Notwithstanding the findings of an inability to establish and maintain effective relationships, the Veteran is shown to have been married to his second wife for 11 years, and to have a "mediocre" relationship with their two (2) children. He is employed as a stock clerk, albeit he was on temporary leave secondary to an outburst/fight. As such, he cannot be said to be totally socially impaired and totally occupationally impaired. This is not to an effort to minimize the Veteran's difficulty interacting with others. However, a 70 percent rating contemplates the inability to establish and maintain effective relationships. As such, the Veteran can be squarely within the confines of a 70 percent rating, while having significant difficulty with relationships. The Board therefore finds that the Veteran's PTSD symptoms are not of such severity to approximate, or more nearly approximate, the criteria for an evaluation in excess of 70 percent under DC 9411 for the period from March 13, 2020. See 38 C.F.R. § 4.7; Vazquez-Claudio. In summary, there is insufficient evidence of 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; disorientation to time or place; memory loss of names of close relatives, own occupation, or own name; nor are other psychiatric symptoms shown to have resulted in the required level of impairment. Vazquez-Claudio. Given the foregoing, the Board finds that the Veteran's PTSD symptoms are not of such severity to approximate, or more nearly approximate, the criteria for a 100 percent rating under DC 9411. See 38 C.F.R. § 4.7; Vazquez-Claudio (38 C.F.R. § 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). The Board also acknowledges the Veteran's belief that his PTSD symptoms are of such severity as to warrant ratings in excess of 50 and 70 percent for the prescribed periods on appeal. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Here, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran's assessment of the severity of his PTSD. The examinations also considered the Veteran's competent (subjective) statements with regard to the severity of his PTSD. As the Veteran has been employed during the appeal period, the Board also does not find that an implied claim for a total disability rating based on individual unemployability (TDIU) has been raised by the record under Rice v. Shinseki, 22 Vet. App. 447 (2009). Service Connection Claims- Low Back and Bilateral Ankle Disabilities The Veteran seeks service connection for low back, and bilateral ankle disabilities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Service connection for low back disability The Veteran seeks service connection for a low back disability. He maintains that he received treatment for his low back at Fort Huachuca, Arizona secondary to having participated in long road marches. See October 2014 Notice of Disagreement. Here, many of the Veteran's service treatment records appear to be missing covering his later years in service. The Board remanded the Veteran's claim for a VA examination which found that the Veteran did in fact have a back disability. As noted, above, the combat presumption eases the burden of proof for certain Veterans engaged in combat. Here, the Veteran certainly qualifies for the presumption. Service personnel records show that the Veteran conducted more than 200 combat missions and he credibly testified to the back pain he experienced both in service and since that time. Accordingly, the Board will resolve reasonable doubt in the Veteran's favor and grant service connection for a back disability. Service connection for a bilateral ankle disability The Veteran seeks service connection for bilateral ankle disability. He maintains that he was seen at sick call on various occasion for ankle injuries, that he received treatment in Germany between 1998-1999 for his ankles, and that he sustained ankle injuries on three (3) 60-mile road marches as a military policeman while stationed in Arizona. See October 2014 Notice of Disagreement. A VA examination diagnosed bilateral ankle disabilities and noted the onset had been in approximately 2002. Given the absence of service treatment records and applicability of the combat presumption, the Board will resolve reasonable doubt in the Veteran's favor and grant service connection for a bilateral ankle disability. REASONS FOR REMAND The Veteran seeks service connection for a left knee disability. He contends that he received treatment in Germany for a torn anterior cruciate ligament of the left knee, was issued a brace, and participated in therapy for two months. The Veteran maintains that he reinjured his left knee during night field training exercise in Afghanistan in January 2005, and was ultimately placed on a physical profile (e.g., no running, jumping, or climbing). In October 2020, a VA examiner clinically evaluated the Veteran's and determined that he did not have a left knee disability. VA treatment reports show complaints of left knee pain, but that a left knee diagnosis does not appear to have been made. However, it is noted that there was no mention of the ACL in the examination report, and given the Veteran's credible testimony and the absence of service treatment records, a second VA examination should be provided. The Board notes that "disability" as defined in 38 U.S.C. § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability, and that pain alone can reach the level of a functional impairment of earning capacity. Saunders v. Wilkie, 866 F.3d 1356 (2018). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination of his left knee. The examiner should: a) Determine whether the Veteran has an ACL injury, or residuals of such (in his testimony he indicated that he had been treated in Germany for a torn ACL and performed rehab for several months); b) Determine whether the Veteran has a current left knee disability, noting that when pain in a joint causes functional impairment of earning capacity, it may be considered a disability for VA purposes. c) If a left knee disability is diagnosed, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such a disability began in or was otherwise caused by the Veteran's active military service. Why or why not? In so doing, the examiner should review the Veteran's testimony at his Board hearing in March 2020, as well as giving credence to the fact that the Veteran performed more than 200 combat operations while stationed in the Middle East. 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.