Citation Nr: 21042695
Decision Date: 07/13/21	Archive Date: 07/13/21

DOCKET NO. 16-52 616
DATE: July 13, 2021

ORDER

Entitlement to an initial 70 percent rating prior to August 26, 2016, for posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) is granted.

REMANDED

Entitlement to a disability rating greater than 10 percent prior to March 10, 2016, and after June 1, 2016, for residuals of left ankle sprain is remanded.

Entitlement to a disability rating greater than 10 percent for left knee chondromalacia patella is remanded

Entitlement to a disability rating greater than 10 percent for left knee lateral instability is remanded.

Entitlement to a disability rating greater than 10 percent for right knee strain is remanded.

Entitlement to an initial rating greater than 10 percent effective September 18, 2015, and greater than 20 percent effective September 28, 2016, for right knee lateral instability is remanded.

Entitlement to service connection for a respiratory condition, including chronic bronchitis, to include as secondary to a service-connected disability, is remanded.

Entitlement to service connection for a right ankle condition, to include as secondary to a service-connected disability, is remanded.

Entitlement to service connection for a right hip condition, to include as secondary to a service-connected disability, is remanded.

FINDING OF FACT

Prior to August 26, 2016, the service-connected PTSD and MDD is manifested by symptoms which caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood; there is no indication of total occupational and social impairment.

CONCLUSION OF LAW

Prior to August 26, 2016, the criteria for an initial 70 percent rating for PTSD and MDD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 2001 to April 2002.

This matter again comes before the Board of Veterans' Appeals (Board) on appeal from October 2015 and November 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The Board previously remanded this matter in June 2020. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the RO obtain the Veteran's updated Social Security Administration (SSA) records and request information from her concerning her post-service employment history. The SSA records subsequently were obtained and associated with the claims file. Although it does not appear that the Veteran responded to VA's request for information concerning her post-service employment history, the RO's subsequent decision to grant TDIU renders harmless any error in the RO not following up with the Veteran about this information.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The Board notes that the RO granted a temporary total disability evaluation for the Veteran's service-connected residuals of left ankle sprain due to the Veteran undergoing surgery which necessitated convalescence effective from March 10, 2016, to May 31, 2016. Accordingly, the Board will not address the issue of entitlement to an increased rating for residuals of left ankle sprain during this time period.

The Board also acknowledges that the RO granted separate evaluations for bilateral knee instability in an October 2016 rating decision and increased the evaluation for this disability in a March 2019 rating decision. The issues of instability of the Veteran's bilateral knees are part and parcel of her claim for increased ratings for her service-connected left knee chondromalacia patella and right knee strain and as such are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the Board will address the disability evaluations of bilateral knee instability in addition to the service-connected left knee chondromalacia patella and right knee strain.

Finally, the Board notes that the RO increased the Veteran's disability evaluation of her PTSD and MDD to 100 percent effective August 26, 2016. A grant of a 100 percent disability evaluation is considered a full grant of benefits. The RO also increased the Veteran's initial rating to 50 percent prior to August 26, 2016. Consequently, the Board will address only the issue of entitlement to an initial rating greater than 50 percent prior to August 26, 2016.

1. PTSD and MDD prior to August 26, 2016

The record evidence shows that, during an initial evaluation with VA Mental Health services in December 2014, the Veteran reported a chronic history of depression and endorsed the following symptoms: depression, anxiety, decreased need for sleep, pressured speech, flight of ideas, and distractibility. She stated that she has low self-esteem and would procrastinate, stating, for example, that either the house is super clean or laundry stays on the bed for two weeks. She lost her job in March 2014 which triggered a depressive episode. On examination, the Veteran was casually dressed and appropriately groomed. Her behavior was noted to be cooperative. She was oriented to person, place, date, and situation. Even though the Veteran was alert and attentive, she was easily distracted at times. Her mood was mixed between elated and depressed, including tearfulness, with an affect appropriate to the situation. The Veteran's speech was at a raised volume and pressured rate, though her thought processes were logical and coherent. She denied suicidal and homicidal ideation in addition to hallucinations and delusions. The provider found the Veteran's judgment to be adequate and insight to present state of mental health to be normal.

Later that same month, on VA outpatient treatment in December 2014, the Veteran denied a lack of need for sleep but stated that she does not sleep for more than a few hours at night and noted that she did not feel hopeless or suicidal. She noted frequent swings in her mood and not being motivated. On examination, the Veteran again was found to be casually dressed and appropriately groomed with cooperative behavior. Her provider found that her speech was talkative and storytelling, but not pressured. Her mood was more depressed and affect was calm. Again, her thought processes were logical and directed and she was fully alert and oriented. The provider noted her judgment and insight to be "good/intact."

When she visited her provider again in January 2015, the Veteran stated that she was "very stressed" and that she had been in half asleep/awake states at night. She also noticed an increase in frequency of her anxiety spells and that she would prefer to isolate at home. She stated that she continued to have support with a new friendship and with her husband. On examination, the provider found that the Veteran had a mild affect even though her other symptoms previously noted were the same as in December 2014.

In April 2015, the Veteran reported a severe increase in her depression. She stated "[m]ost days I get nothing accomplished. Days turn into weeks. I can go days without leaving my house" and that when she did leave her house, she had a constant feeling of nervousness. She stated she had not been able to work, which affected her and her family financially. Later that month, she reported that she had been unable to work for the past month due to her psychiatric symptoms and that, at most, she could work one day a week but gets overwhelmed by the built-up workload.

During a May 2015 outpatient treatment visit with her provider, the Veteran stated that though he had been dealing well with a family crisis, she was crying more and not sleeping well. She told her provider that she did not care about going out with friends or cleaning her home as she did before. On examination, although she was walking with a limp and wearing a brace, she was casually dressed and groomed. The Veteran's mood was "stressed, depression" with a mildly anxious affect. She continued to deny suicidal ideation and was oriented in all spheres. Her thought processes were again logical and directed and her provider concluded that the Veteran's insight and judgment were intact.

In June 2015, she stated that she the problems with her sleep had not increased with medications changes but noted that her short term goals included "surviving" her circumstances. The Veteran's provider found that she was casually dressed and groomed although walking slowly with bilateral knee braces. Her behavior was cooperative, but her speech was talkative and fast. The Veteran's mood was stressed with an appropriate stressed and somewhat anxious affect. Her thought processes were again logical and directed, though at times circumstantial.

The Veteran again visited her provider in July 2015, at which time she stated that this was "closest [she's] come to hopeless." She noted that she and her family were behind in finances and rent and that her husband may move with their younger son to live with her husband's mother. She was overwhelmed but denied suicidal ideation. She asked her provider for medication to help her sleep. On examination, she was again casually dressed and groomed though slowly walking with bilateral knee braces. She was crying at times during the session and her speech was talkative and loud at times. The Veteran's mood was "tired physically and mentally" with an appropriate stressed and tearful affect. She later reported to the Emergency Department in July 2015 at which time she stated that she had been very stressed which that day resulted in an episode wherein she was crying uncontrollably which then led to pain in her sinuses and headache with nausea and photophobia.

During a September 2015 VA examination, the Veteran stated that she was initially married in 2002 for approximately one year, but then remarried in 2007. She was separated from her husband. She endorsed having a limited social support network. When asked about her occupational history, the Veteran noted that she had worked up through March 2015. The examiner found that the Veteran exhibited the following symptoms for rating purposes: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, and chronic sleep impairment.

On examination, the Veteran's emotional state was euthymic. She was appropriately groomed to the situation and appeared her stated age. The examiner found that the Veteran was alert and cooperative in addition to fully oriented. The Veteran demonstrated coherent and fluent speech, object naming, and ability to repeat phrases. She also demonstrated good eye contact, along with sustained attention and concentration. No delusions, hallucinations, suicidal ideation, or homicidal ideation were noted. After interviewing the Veteran and reviewing the claims file, the examiner concluded that her psychiatric disability 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. When asked to elaborate on this conclusion, the examiner found: 

The degree of occupational and social impairment associated with psychiatric functioning is believed to be in the range from mild to moderately high. The intensity, the manifestations, and the circumstances surrounding her psychiatric illnesses would have a significant negative impact on occupational and social impairment. 

The examiner also concluded that the Veteran's "symptoms' intensity at this time appear to be exacerbated by distressful psychosocial matters."

When the Veteran met with her provider later in September 2015, she noted that she had a "scatter brained" feeling often. For example, she had been preferring watching television with close captioning as without dual visual and verbal input, she was unable to keep up. She would also speak in English but construct her sentences as if she were speaking German. On examination, the Veteran's provider found that she was casually dressed and groomed with cooperative and pleasant behavior. Her speech was again talkative and loud at times. The Veteran's mood was tired with an appropriate stressed affect. Her thought processes were logical and directed and she continued to deny suicidal and homicidal ideation.

At a November 2015 Neuropsychology Consult, the Veteran stated that she felt she was losing her intelligence and reported several times that she enjoyed school, researching topics, and was impatient with those that she felt were less intelligent. She also reported taking a Xanax to walk into Walmart. She  told the provider that her "brain [does not] stop" which caused difficulty sleeping. She stated that she would stay awake for days at a time without taking her prescribed medication. She also noted that she and her husband were still separated at this time though they were pursuing counseling. On examination, the Veteran was noted to be casually dressed for the occasion and season and she exhibited reasonable personal hygiene. She demonstrated cooperative behavior and attitude and was oriented in all spheres. Her mood was sad, frustrated, yet optimistic with stable affect but her speech was hyper fluent. The provider found that her thought processes were again logical and coherent.

The following month, in December 2015, the Veteran stated that she was falling asleep better but was very active in her sleep including punching, yelling, and cursing. She noted limited patience. Her examinations during her December 2015 visits were similar to her November 2015 Neuropsychology Consult.

In a February 2016 message to her provider, the Veteran noted that she was struggling to fit in, stating "I [do not] really blend completely socially with civilians, but I have tried to socially engage with Veterans, also being given the same denial."

During a March 2016 visit, the Veteran reported to the appointment with her husband, at which examination she was found to be casually dressed for the occasion and season with good eye contact. She demonstrated reasonable personal hygiene and cooperative behavior. Her speech was at a normal rate and volume.

Having reviewed the record evidence, the Board finds that the Veteran is entitled to an initial 70 percent rating prior to August 26, 2016, for her service-connected PTSD and MDD. Her struggles with maintaining employment (discussed above) and separation from her husband in 2015 indicate occupational and social impairment with deficiencies in work and family relations. Although her symptoms waxed and waned, she reported significant issues and increased frequency in anxious and depressive episodes that the Board finds consistent with an initial 70 percent rating.

Nevertheless, the Board does not find that entitlement to an initial 100 percent disability evaluation is warranted. The Veteran consistently has shown attention to personal hygiene and grooming. And there is no evidence of symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting herself or others, intermittent inability to perform activities of daily living, or disorientation to time or place. The evidence of record, to include consideration of the Veteran's lay statements, does not indicate that her psychiatric symptoms were of such a severity, frequency, or duration to more closely approximate the criteria for an initial 100 percent rating for her service-connected PTSD and MDD.  In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for an initial 70 percent rating for PTSD and MDD have been met.

REASONS FOR REMAND

1. Residuals of Left Ankle Sprain

Regarding the Veteran's claim of entitlement to a disability rating greater than 10 percent prior to March 10, 2016, and after June 1, 2016, the Board notes that the Veteran most recently underwent a VA examination in September 2016. Following this examination, the United States Court of Appeals for Veterans Claims held in Sharp that when a Veteran reports the existence of flare-ups with a musculoskeletal disability, as she had done during her VA examinations regarding her left ankle, the examiner must describe functional loss in terms of additional range of motion loss due to pain on use or flare-ups or to provide an approximate estimate after obtaining the following information: the severity, frequency, and duration of flare-ups, precipitating and alleviating factors, and estimate, per the Veteran, to what extent, if any, they affect functional impairment. See Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017).

The Board acknowledges that the Veteran reported flare-ups of her left ankle disability during her examinations in September 2015 and in September 2016. Thus, the Board finds that, on remand, the RO should obtain a retrospective and current opinion as to the severity of the Veteran's service-connected residuals of left ankle sprain.

2. Bilateral Knee Conditions 

As noted above, when a Veteran reports the existence of flare-ups with a musculoskeletal disability, as she had done during her VA examinations regarding her left ankle, the examiner must describe functional loss in terms of additional range of motion loss due to pain on use or flare-ups or to provide an approximate estimate after obtaining the following information: the severity, frequency, and duration of flare-ups, precipitating and alleviating factors, and estimate, per the Veteran, to what extent, if any, they affect functional impairment. Id. During both her September 2015 and September 2016 examinations, the Veteran reported flare-ups of her bilateral knee pain. Consequently, as with the Veteran's left ankle condition, the Board finds that, on remand, the RO should obtain a retrospective and current opinion as to the severity of the Veteran's service-connected bilateral knee conditions, including instability.

3. Respiratory Condition

Concerning the Veteran's claim for entitlement to service connection for a respiratory condition, including bronchitis, to include as secondary to a service-connected disability, the Board finds that the September 2015 opinion is inadequate for VA adjudication purposes. The September 2015 examiner found that the Veteran had not been diagnosed with any respiratory condition. Contrary to this finding in September 2015, VA treatment records show instead that she had been diagnosed with bronchitis, asthmatic bronchitis, and pneumonia. As such, the Board finds that the September 2015 opinion is based on an inadequate factual premise and is not afforded any probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012).

Furthermore, the September 2015 opinion only addresses whether the Veteran's current respiratory condition was caused by her service-connected conditions but does not address aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2012). The Veteran's service treatment records indicate diagnoses of upper respiratory infections and pharyngitis. Therefore, there is a question as to whether the Veteran's current respiratory issues are related directly to her active service. Thus, the Board finds that, on remand, the RO should obtain a medical opinion as to the nature and etiology of the Veteran's claimed respiratory conditions.

4. Right Ankle and Right Hip Conditions

First, the Board acknowledges that, although the Veteran was not diagnosed with a right ankle or right hip condition during her September 2015 examinations, she has reported pain to her right ankle and right hip. The Board notes in this regard that the Court has held that pain resulting in functional impairment can be considered a service-connected disability.  See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (finding that service connection is warranted for complaints of pain which result in functional impairment). Second, the Board notes that the September 2015 opinions regarding secondary service connection only address causation and not aggravation. See El-Amin, 26 Vet. App. at 140-41. Thus, the Board finds that the September 2015 opinions concerning these disabilities are inadequate for VA adjudication purposes. The Board also finds that, on remand, the RO should obtain opinions which address these matters.

Third, the Veteran has reported to her VA treating clinicians that she has seen a private rheumatologist regarding her right ankle and right hip and has been diagnosed with fibromyalgia and unspecified connective tissue disease. On remand, the Board requests that these records be obtained and associated with the claims file. 

The matters are REMANDED for the following action:

1.  Conduct any appropriate development to obtain the Veteran's updated treatment records.

2.  Thereafter, forward the claims file to a clinician for an opinion as to the nature and severity of the Veteran's service-connected residuals of left ankle sprain prior to March 10, 2016 and from June 1, 2016, to the present.  If possible, this opinion should be provided by a clinician other than the clinician who conducted the September 2016 examination.  The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s).

Based on review of the claims file and the results of the Veteran's physical examination (if held), the clinician should provide an opinion whether, at any point from April 20, 2014, to March 10, 2016, and from June 1, 2016, to the present, the record reflects any change(s) in severity of the Veteran's residuals of left ankle sprain, including measurements and/or estimates of the described flare-ups, and, if so, the approximate date(s) of any such change(s), including the degrees of additional range of motion lost during flare-ups, if possible.  If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician should explain why this is so.

3.  Forward the claims file to an appropriate clinician for an opinion as to the nature and severity of the Veteran's service-connected left knee chondromalacia patella, right knee sprain, left knee lateral instability, and right knee lateral instability.  The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s).

Based on review of the claims file and the results of the Veteran's physical examination (if held), the clinician should provide an opinion whether, at any point from April 20, 2014, to the present, the record reflects any change(s) in the Veteran's service-connected left knee chondromalacia patella, right knee strain, left knee lateral instability, and right knee lateral instability, including measurements and/or estimates of the described flare-ups, and, if so, the approximate date(s) of any such change(s), including the degrees of additional range of motion lost during flare-ups, if possible.  If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician should explain why this is so.

4.  Forward the claims file to an appropriate clinician for an opinion as to the nature and etiology of any respiratory conditions, including but not limited to bronchitis, asthmatic bronchitis, and pneumonia, experienced by the Veteran.  If possible, this opinion should be provided by a clinician other than the clinician who conducted the September 2015 examination.  The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s).

Based on a review of the claims file and the results of the Veteran's physical examination (if held), the clinician should identify any respiratory condition(s) currently experienced by the Veteran.  For each identified condition, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it is related to active service.  The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a service-connected disability caused or aggravated a respiratory condition(s), if diagnosed.  A rationale must be provided for any opinion(s) expressed.  If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician should explain why this is so.

The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a respiratory condition, alone, is insufficient rationale for a medical nexus opinion.  The clinician also is advised not to review or rely upon a September 2015 examination in preparing his or her own opinion(s).

5.  Forward the claims file to an appropriate clinician for an opinion as to the nature and etiology of any right ankle condition(s), including right ankle pain, currently experienced by the Veteran.  If possible, this opinion should be provided by a clinician other than the clinician who provided the September 2015 opinion.  The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s).

Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to identify any right ankle condition(s) currently experienced by the Veteran.  If no right ankle condition is diagnosed, then the clinician should determine whether the Veteran's reported right ankle pain results in functional impairment.  For each identified right ankle condition, or if the clinician determines that the Veteran's right ankle pain results in functional impairment, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it is related to active service.  The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a service-connected disability caused or aggravated a right ankle condition.  A rationale must be provided for any opinion(s) expressed.  If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician should explain why this is so.

The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a right ankle condition, alone, is insufficient rationale for a medical nexus opinion.  The clinician also is advised not to review or rely upon a September 2015 opinion in preparing his or her own opinion.

6.  Forward the claims file to a clinician for an opinion as to the nature and etiology of any right hip condition(s), including right hip pain, currently experienced by the Veteran.  If possible, this opinion should be provided by a clinician other than the clinician who provided the September 2015 opinion.  The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s).

Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to identify any right hip condition(s) experienced by the Veteran.  If no right hip condition is diagnosed, then the clinician should determine whether the Veteran's reported right hip pain results in functional impairment.  For each identified right hip condition, or if the clinician determines that the Veteran's right hip pain results in functional impairment, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it is related to active service.  The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a service-connected disability caused or aggravated a right hip condition.  A rationale must be provided for any opinion(s) expressed.  If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician should explain why this is so.

7.  Readjudicate the appeal.

 

 

MICHAEL T. OSBORNE

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Seserman

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.