Citation Nr: 22019239
Decision Date: 03/31/22	Archive Date: 03/31/22

DOCKET NO. 20-00 234
DATE: March 31, 2022

ORDER

New and material evidence having been submitted, the claim for entitlement to service connection for a left knee disability is reopened.

New and material evidence having been submitted, the claim for entitlement to service connection for hypertension is reopened.

Entitlement to an earlier effective date for the grant of service connection for posttraumatic stress disorder prior to April 22, 2013, is denied.

Entitlement to an earlier effective date for the grant of service connection for tinnitus prior to August 25, 2017, is denied.

Entitlement to an increased disability rating of 50 percent for posttraumatic stress disorder from April 17, 2015, to May 30, 2018, is granted.

Entitlement to a rating higher than 10 percent for tinnitus is denied.

REMANDED

Entitlement to a rating higher than 10 percent for right knee osteoarthritis is remanded.

Entitlement to service connection for left knee osteoarthritis is remanded.

Entitlement to service connection for a bilateral hearing loss is remanded.

Entitlement to service connection for hypertension is remanded.

Entitlement to service connection for diabetes mellitus type II is remanded.

Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to May 30, 2018, is remanded.

FINDINGS OF FACT

1. A March 2010 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denied the Veteran's claim of service connection for a left knee disability; the Veteran was notified of the decision and apprised of his right to appeal but did not file a timely appeal or submit new and material evidence within one year of the notice of this decision.

2. Evidence received since the March 2010 rating decision is neither cumulative nor repetitive of facts that were previously considered and raises the possibility of substantiating the claim.

3. An August 2015 rating decision denied the Veteran's claim of service connection for hypertension; the Veteran was notified of the decision and apprised of his right to appeal but did not file a timely appeal or submit new and material evidence within one year of the notice of decision.

4. Evidence received since the August 2015 rating decision is neither cumulative nor repetitive of facts that were previously considered and raises the possibility of substantiating the claim.

5. The Veteran's claim for service connection for PTSD was received on April 22, 2013.

6. The Veteran filed a request to reopen a final, previously denied claim for service connection for hearing loss and tinnitus on August 25, 2017; there were no other pending, unadjudicated formal or informal claims for service connection for tinnitus prior to this date.

7. From April 17, 2015, to May 30, 2018, the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood, anxiety, chronic sleep impairments, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work and social relationships; flashbacks; frequent nightmares; angry outbursts; and hypervigilance.

8. The Veteran already has the highest permissible schedular rating for his tinnitus, and it does not present an exceptional or unusual disability picture with related factors such as marked interference with his employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.

CONCLUSIONS OF LAW

1. The March 2010 rating decision that denied service connection for a left knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. § §§ 20.302, 20.1103.

2. The criteria for reopening the claim of service connection for a left knee disability are met. 38 U.S.C. § 5108; 38 C.F.R. § § 3.156 (a).

3. The August 2015 rating decision that denied service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. § §§ 20.302, 20.1103.

4. The criteria for reopening the claim of service connection for hypertension are met. 38 U.S.C. § 5108; 38 C.F.R. § § 3.156 (a).

5. The criteria for entitlement to an earlier effective date for the grant of service connection for PTSD are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

6. The criteria for entitlement to an earlier effective date for the grants of service connection for tinnitus are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

7. The criteria for an increased disability rating of 50 percent, but not higher, from April 17, 2015, to May 30, 2018, for service-connected PTSD are met. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16, 4.130, DC 9411.

8. The criteria for entitlement to a rating higher than 10 percent for the tinnitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, DC 6260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably in the United States Army from September 1973 to September 1975.

This matter comes to the Board on Veterans' Appeals (Board) on appeal from a June 2017, July 2017, January 2018, and October 2019 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

In June 2021, the Veteran appeared and testified at a Board hearing before the undersigned Veterans' Law Judge. A transcript of the hearing has been reviewed and is associated with the Veteran's claim file. The Board notes that the Veteran did not present testimony as to his appeal for increased disability ratings for PTSD and tinnitus; earlier effective dates for the grant of service connected for PTSD and tinnitus; and service connection for hearing loss. The Veteran requested that the Board adjudicate these claims based on the evidence on record.

1. Claim to reopen entitlement to service connection for a left knee disability 

2. Claim to reopen entitlement to service connection for hypertension

The Veteran's claim for entitlement to service connection for a left knee disability, was denied by the RO in the March 2010 rating decision because service treatment records was void of any complaints, treatment, and/or diagnosis of any knee condition. Service connection for hypertension was denied in the August 2015 rating decision because the condition neither occurred in nor was caused by service, nor was it manifested to a compensable degree within one year following release from active service. The Veteran was notified of the denial by letters dated March 30, 2010, and August 25, 2015.  The Veteran did not appeal those decisions within one year of notification of the decisions, and they therefore became final. See 38 C.F.R. § § 20.302 (a). 

The Veteran filed to reopen his claim for entitlement to service connection for left knee disability in September 2016. In a June 2017 rating decision, the RO determined that new and material evidence had been submitted to reopen the claim but continued the previous denial of service connection for a left knee disability. Similarly, the Veteran filed to reopen his service connection for hypertension claim in August 2017. In an October 2019 Statement of the Case (SOC), the RO determined that new evidence has been received to reopen the service connection claim for hypertension but continued the previous denial. Prior to deciding the Veteran's claims of service connection for a left knee disability and hypertension, the Board must first determine whether new and material evidence that is sufficient to reopen the claims have been submitted.

A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § § 3.156. New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § § 3.156 (a).

The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Moreover, the Court of Appeals for Veterans Claims explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

At the time of the March 2010 and August 2015 rating decisions, the evidence of record pertinent to the left knee and hypertension claims included: Service Treatment Records (STRs); VAMC treatment records, and Certificate of Release or Discharge From Active Duty (DD 214). Following a review of the Veteran's file, relevant evidence added to the record since the March 2010 and August 2015 rating decisions, includes additional VAMC treatment records, private medical reports, Buddy Statements, February/April 2017 & November 2019 Knee Examinations. 

In addition, other pertinent evidence submitted also included the Veteran's testimony during Board hearing, regarding the onset of his left knee and hypertension disabilities. The Veteran testified at Board hearing that his left knee disability may also be associated to his service-connected right knee disability and that he has been constantly balancing his weight on the left so much so that, the left knee is now worse than the right knee. Regarding his hypertension, the Veteran testified that he was diagnosed more than 20 years ago and has been receiving treatment for this condition. See June 2021 Hearing Transcript. The Board finds that these constitute "new" evidence, as they were not available at the time of the March 2010 and August 2015 rating decisions. Furthermore, the Board notes that this new evidence is "material", as it suggests that there may be a nexus between the Veteran's claimed disabilities and his military service or that the left knee could be secondary to the service-connected right knee. Therefore, the Board finds there is sufficient evidence to reopen the previously-denied claims of entitlement to service connection for a left knee disability and a hypertension disability.

Effective Dates

Generally, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400.

An exception to this rule applies if an application for benefits is received within one year from the date of a veteran's discharge or release from active service, and an award is made on the basis of that application. In this situation, the effective date of the award is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2).

3. Entitlement to an earlier effective date for the grant of service connection for posttraumatic stress disorder prior to April 22, 2013

Here, on April 22, 2013, VA received the Veteran's VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), alleging entitlement to service connection for PTSD. There is no evidence in the claims file prior to April 22, 2013, which can reasonably be construed as an earlier attempt to file a claim for service connection for PTSD. Therefore, April 22, 2013, is the appropriate effective date for the grant of service connection for PTSD.

By statute, a specific claim in the form prescribed by the Secretary must be filed for benefits to be paid or furnished to any individual under the laws administered by the Secretary. 38 U.S.C. § 5101(a). No such claim was submitted prior to April 22, 2013. There is no correspondence prior to April 22, 2013, indicating an intent to file a claim of entitlement to service connection for PTSD. To the extent any medical records discuss this disability, they, alone, are insufficient to demonstrate intent to file a claim. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006) (stating that the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit).

Accordingly, the weight of the evidence is against the claim for an earlier effective date prior to April 22, 2013, for the grant of service connection for PTSD. The benefit of the doubt rule is not applicable, and the claim must be denied.

4. Entitlement to an earlier effective date for the grant of service connection for tinnitus prior to August 25, 2017

The Veteran seeks entitlement to an effective date earlier than August 25, 2017, for the award of service connection for tinnitus. For the reasons described below, the Board finds that August 25, 2017, is the proper effective date for the award of service connection for tinnitus.

By way of history, the Veteran filed an original claim for service connection for a hearing loss and tinnitus in April 2010. The claim was denied in a September 2010 rating decision, which the Veteran did not appeal. Thus, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § §§ 20.302, 20.1103.

The Veteran filed a request to reopen his previously denied claim for service connection for hearing loss (and impliedly tinnitus) on August 25, 2017. In a January 2018 rating decision, the AOJ granted the Veteran's previously denied claim for service connection for tinnitus with an evaluation of 10 percent effective August 25, 2017. The Veteran initiated an appeal by filing a timely notice of disagreement (NOD) in January 2019 and, subsequently, a timely substantive appeal in disagreeing with the assigned effective date for the grant of service connection. The instant claim arises from this NOD.

After careful review of the facts of this case in light of the above-noted legal criteria, the Board finds that the assignment of an effective date earlier than August 25, 2017, for the award of service connection for tinnitus is not warranted.

First, the Board notes that the Veteran filed a request to reopen a final, previously denied claim for service connection for tinnitus on August 25, 2017. Prior to August 25, 2017, the Board does not find that the record contains any pending, unadjudicated formal or informal claims for service connection for tinnitus at any time. In this regard, all of the Veteran's prior claim for tinnitus had become final. Furthermore, the claims file does not contain any other unadjudicated formal claims, or informal statements that could be construed as a claim, to reopen the service connection claim for tinnitus at any time prior to August 25, 2017. Therefore, the claim received by VA on August 25, 2017, was an application to reopen the previously denied claim for service connection for tinnitus, which was granted in the January 2018 rating decision. Where, as here, a prior, finally denied claim is reopened, the effective date cannot be earlier than the date of the claim to reopen, which, in this case, is August 25, 2017. 38 C.F.R. § 3.400; Juarez, 21 Vet. App. at 539-40.

The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. For the reasons discussed above, the appeal as to entitlement to an effective date earlier than August 25, 2017, for the award of service connection for tinnitus is denied. As the evidence is against the assignment of an earlier effective date, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53.

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1.

Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafarth v. Derwinski, 1 Vet. App. 589, 594 (1991).

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.

5. Entitlement to an increased disability rating of 50 percent for posttraumatic stress disorder

The Veteran was previously granted service connection for PTSD and assigned a 30 rating effective from April 22, 2013, to May 30, 2018. A 100 percent rating is in effect from May 30, 2018 (based on date of examination showing increase in disability). The Veteran argues that he is entitled to a rating higher than 30 percent prior to May 30, 2018, for his service-connected PTSD. 

In the instant case, the Board finds that from April 17, 2015, to May 30, 2018, the Veteran's PTSD was manifested by occupational and social impairment productive of occupational and social impairment with reduced reliability and productivity due to depressed mood, anxiety, chronic sleep impairments, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work and social relationships; flashbacks, frequent nightmares, angry outbursts and hypervigilance.

The Veteran's post-traumatic stress disorder (PTSD) is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411.

Under DC 9411, a 50 percent rating contemplates 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; impairments of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent evaluation is warranted where there is 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; 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 work like setting); inability to establish and maintain effective relationships.

A 100 percent evaluation is warranted where there is 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 for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders.

Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002).

According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126 (b).

In a January 2013 Mental Health Progress Notes, the Veteran endorsed anxiety, agitation, sleep disturbance, irritability and anger related primarily to his service in Korea. On mental status evaluation, the Veteran was oriented.  His dress and grooming were noted to be appropriate. His affect was broad and congruent to topic. His speech was of normal rate, tone, and rhythm. His stream of thought was noted to be productive, spontaneous and no evidence of loose associations. He denied suicidal and homicidal ideations. There was no evidence of auditory/visual hallucinations or delusion. See Medical Treatment Record - Government Facility.

A June 2014 Psychiatric Outpatient Note, indicated that the Veteran presented for follow-up. He reported that his mood continues to be depressed at times but denied suicidal ideation. No homicidal thoughts were expressed. Sleep continued to be restless and interrupted by nightmares. On mental status evaluation, it was noted that the Veteran was awake, alert, and oriented x 4. He was adequately dressed and nourished. Gait was normal. No involuntary movements were noted. Eye contact was good. Affect was minimally anxious, and mood was described as "a little disappointed" which the Veteran clarified by stating that, he was upset that his claim for PTSD was denied by the VA. Thought process was goal-directed and speech of normal rate and volume. Psychotic symptoms were not present. See CAPRI.

In an April 17, 2015, Psychiatry Outpatient Note, the Veteran admitted to often experiencing feelings of impending doom and is generally startled by loud noises. He reported being very uncomfortable in crowds and avoids family gatherings as a result of this. He stated that prior to military service he was outgoing and frequently attended parties without difficulty. He admitted to sometimes being more easily angered than he should and stated that his wife often comments on his irritability. The Veteran denied experiencing and suicidal or homicidal thoughts. On mental status evaluation, the Veteran was awake, alert, and oriented to person, place, time, and situation. Concentration was adequate. He was adequately dressed and nourished. Gait was normal. No involuntary movements were noted. Eye contact was good. Affect was somewhat anxious. Mood was described as "Okay". Thought process was goal-directed. Thought content was appropriate to conversation. Speech was of normal rate and volume. Psychotic symptoms were not present. Insight and judgment were grossly intact. The psychiatrist noted that after reviewing history with the Veteran, it is felt that he was experiencing symptoms consistent with moderately severe post-traumatic stress disorder resulting from experiences while stationed in Korea. See CAPRI.

A September 2016 Psychiatry Outpatient Note indicated that the Veteran presented for follow-up and reported persistent hypervigilance and irritability. The Veteran denied having become physically aggressive when angered and did not express any homicidal thoughts. The Veteran often is mildly depressed but denied suicidal ideation. Sleep is restless with frequent nightmares. On mental status evaluation, the Veteran was awake, alert, and oriented to person, place, time, and situation. Concentration was fair. He was adequately dressed and nourished. The Veteran walked with a slight limp and appeared uncomfortable when doing so. No involuntary movements were noted. Affect was sad. Mood was described as "sort of depressed". Thought process was goal-directed. Thought content was appropriate to conversation. Speech was of normal rate and volume. Psychotic symptoms were not present. Insight and judgment were grossly intact. The psychiatric noted that the Veteran continues to experience significant symptoms of PTSD and relatively mild depressive symptoms. See CAPRI.

A December 2016 Psychiatry Outpatient Note reveal that the Veteran reported that he has been sleeping very poorly and was uncertain if he had slept at all the previous night. The Veteran stated that when he is able to sleep, he experiences frequent nightmares which often awaken him. He admitted to being easily irritated but denied having become physically aggressive and did not express any homicidal thoughts. He reported often experiencing depressed mood but denied suicidal ideation. Appetite is chronically poor and does not eat meals regularly. The Veteran stated that he only eats when he is feeling very hungry and that there are some days, he does not eat at all. He expressed concern about perceived deterioration in memory and reported having become progressively more forgetful over time. He stated that he had not experienced any improvement in mood or sleep with mirtazapine at 15mg but could not take full 30mg dose due to excessive daytime sedation. On mental status evaluation, the Veteran appeared drowsy, yawned frequently and almost fell asleep during visit. He was oriented to person, place, time, and situation. Concentration was poor. He was adequately dressed and nourished. Gait was normal. No involuntary movements were noted. Eye contact was variable. Affect was variably sad and anxious. Mood was described as "not so good". Thought process was goal-directed. Thought content was appropriate to conversation. Speech was of normal rate and volume. Psychotic symptoms were not present. Insight and judgment were grossly intact. The psychiatric noted that the Veteran was experiencing significant symptoms of PTSD and that insomnia may be a manifestation of depressive illness or PTSD. The physician noted that the Veteran complaint of forgetfulness may be secondary to generally poor concentration, sleep deprivation or have another cause. See CAPRI.

The Veteran was afforded a VA Initial Post Traumatic Stress Disorder Examination in January 2017. It was noted that the Veteran's symptoms meet the diagnostic criteria for PTSD under DSM-5 criteria, and that anxiety and depression were part of his PTSD and not separate diagnoses. It was noted that the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. It was noted that the Veteran has done PTSD groups on Fridays for over a year and had subsequently changed to monthly group meetings. It was noted that the Veteran has also done individual work with Dr. S. S. and that he has no history of psychiatric hospitalizations. PTSD symptoms included depressed mood, anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was noted to be shaky. He was verbal and tense. He seemed anxious but was oriented in all spheres. His thought processes were logical and goal oriented. No hallucinations or delusions were reported. Suicidal and homicidal ideation was denied. See January 2017 C&P Examination.

In a June 2017 Psychiatry Outpatient Note, the Veteran reported persistent problems with irritability and sometimes strikes inanimate objects when upset. He stated that he tries to isolate himself as much as possible to avoid being angered. He denied current suicidal or homicidal ideation. He reported that he sleeps poorly and has frequent nightmares. His appetite was chronically poor, and often eats only once per day. On mental status evaluation, the Veteran was awake, alert, and oriented to person, place, time, and situation. Concentration was fair. He was adequately dressed and nourished. Gait was normal. No involuntary movements were noted. Eye contact was good. Affective range was relatively constricted. Mood was described as "not so good". Thought process was goal-directed. Thought content was appropriate to conversation. Speech was of normal rate and volume. Psychotic symptoms were not present. Insight and judgment were grossly intact. The psychiatric noted that the Veteran continues to experience severe symptoms of PTSD. See CAPRI.

On May 30, 2018, the Veteran submitted to a private examination. In June 2018, the private examiner provided a detailed analysis of the May 2018 mental health evaluation. The examiner noted that the Veteran experienced near continuous PTSD symptoms, panic, nightmares, and depression which prevent the Veteran from functioning independently, appropriately, and effectively. The examiner explained that because of the PTSD symptoms, the Veteran is unable to function around others for more than a few minutes. The examiner noted that concentration and memory are impaired due to a lack of restorative sleep, and that the Veteran's depressive symptoms make it impossible for him to sustain sufficient energy and motivation to carry out work assignments and some activities of daily living. The examiner noted that when asked, the Veteran reported that he spends his day "just sitting around" and that he has no hobbies. See Medical Treatment Record - Non-Government Facility. Based on this private examination, the Veteran's disability rating for his service connected PTSD was increased from 30 percent to 100 percent, effective May 30, 2018.

The Board notes that adjudicator is charged with interpreting the competent and credible evidence of record as a whole and reconciling such to accurately reflect the disability. Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009); 38 C.F.R. § 4.2.

Affording the Veteran, the benefit of the doubt, the Board finds that he is entitled to a 50 percent rating, but no higher, from April 17, 2015, to May 30, 2018.

As noted above, treatment records dating from April 17, 2015, show an increase in severity of the Veteran's PTSD.  The Board finds the Veteran's lay statements credible as to the symptoms of his PTSD for the period under review. The Board finds that the Veteran's VA treatment records, taken together with the lay statements of record, are indicative of an increase in severity of this Veteran's PTSD symptoms from April 17, 2015, to May 30, 2018. The Board finds that the Veteran's symptoms as notated in the treatment records, beginning April 17, 2015, more closely approximate occupational and social impairment with reduced reliability and productivity due to symptoms of depressed mood, anxiety, chronic sleep impairments, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work and social relationships. The Veteran has also endorsed symptoms of flashbacks, frequent nightmares, hypervigilance, and angry outbursts. See CAPRI.

The Board finds that a 70 percent rating is not warranted for the appeal period prior to May 30, 2018. The Board observes that during this period, the Veteran has consistently denied symptoms of suicidal or homicidal ideations throughout his treatment records. While there are notations in the record of "occasional transient suicidal thoughts" The psychiatric has indicated clearly these were entered in error and should be ignored. See CAPRI.  Further, although the Veteran appears to keep to himself, he has maintained a long-term relationship with his wife. Hence, the evidence has not demonstrated an inability to establish and maintain effective relationships. See CAPRI. Additionally, the Board observes that the Veteran has also noted that he experiences panic attacks associated his PTSD only once weekly. See CAPRI.

Therefore, the Board concludes that the Veteran's PTSD symptoms prior to May 30, 2018, do not reflect the frequency, severity or duration contemplated by the schedular criteria to warrant a 70 percent rating. Overall, the Board finds that during this period under review, his PTSD symptoms do not appear to be so severe as to limit his occupational and social functioning on a daily basis but do reduce his reliability and productivity. Specifically, the Board finds that the evidence of record does not reflect symptomatology of the Veteran's PTSD that would meet or approximate the criteria for a rating of 70 percent or higher prior to May 30, 2018.

As referenced above, at no time during the appeal period under review is there evidence of 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 interfered with routine activities, illogical speech, near-continuous panic, or depression affecting the ability to function independently or inability to establish and maintain effective relationships. Therefore, the Board finds the weight of the evidence is against a finding that the Veteran's symptoms more nearly approximate the criteria for a 70 percent disability rating for the period prior to May 30, 2018.

After careful consideration of the evidence of record, the Board finds that resolving doubt in the Veteran's favor, beginning April 17, 2015, to May 30, 2018, the criteria for entitlement to a 50 percent rating, but no higher, for the service-connected PTSD were met or approximated.

As a final point, the Board notes that although the Veteran does not have all of the listed symptoms provided with a 50 percent rating, such as circumstantial, circumlocutory, or stereotyped speech or panic attacks more than once a week, the provided symptoms are not to be treated as a checklist when determining what rating is appropriate. Mauerhan, 16 Vet. App. at 442. Therefore, considering the entire picture of the Veteran's symptoms between April 17, 2015, and May 30, 2018, a rating of 50 percent, but no higher, is appropriate.

Accordingly, the Board grants the Veteran's claim for a higher disability rating of 50 percent, but no higher, beginning April 17, 2015, to May 30, 2018.

6. Entitlement to a rating higher than 10 percent for tinnitus

The Veteran has had a 10 percent rating for his tinnitus effectively since August 25, 2017. This is the maximum permissible schedular rating for this disease, irrespective of whether it is unilateral or bilateral or perceived as elsewhere in the head. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), citing 38 C.F.R. § 4.87, DC 6260.

DC 6260 provides for a 10 percent rating for recurrent tinnitus (ringing in the ear). 38 C.F.R. § 4.87, DC 6260. There are 3 notes relevant to DC 6260. Note (1) states that a separate evaluation for tinnitus may be combined with an evaluation under DCs 6100, 6200, 6204, or other DC, except when tinnitus supports an evaluation under one of those DCs. Note (2) states that only a single evaluation is to be assigned for recurrent tinnitus, regardless of whether the sound is perceived in one ear, both ears, or in the head. Note (3) states that objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) is not to be rated under this DC but instead should be evaluated as part of any underlying condition causing it. 38 C.F.R. § 4.87, DC 6260.

In an exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director of the Compensation and Pension Service, upon field station submission, is authorized to approve based on the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1).

There is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Second, if the schedular ratings do not contemplate a Veteran's level of disability and symptomatology and are found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as governing norms. Third, if the Rating Schedule is inadequate to rate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. See Thun v. Peake, 22 Vet. App. 111 (2008). But there is no such indication here.

The Veteran asserts that his tinnitus warrants a higher evaluation. At the January 2018 VA Hearing Loss and Tinnitus Examination, the Veteran stated that the tinnitus interrupted his sleep. While the evidence indicate that the Veteran has significant sleep issues (See Dougherty v. McDonough, No. 21-0092 (October 6, 2021) (noting that, in denying an extraschedular rating, the Board should consider whether it needs to address any sleep disturbance attributed to the disability)), the Veteran however has a separate disability rating for his PTSD which, according to 38 C.F.R. § 4.130, DC 9411, has associated sleep impairment. So, the VA cannot twice compensate him for this very same symptom since this would contravene VA's anti-pyramiding regulation 38 C.F.R. § 4.14.

Accordingly, the evidence is against this claim for any higher rating, so the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consequently, the appeal of this claim is denied.

REASONS FOR REMAND

1. Entitlement to a rating higher than 10 percent for right knee osteoarthritis is remanded.

VA has a duty to provide a contemporaneous examination when the evidence indicates the current rating may be incorrect, including when a veteran states the condition has worsened since the last VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). During the Veteran's June 2021 Board hearing, he indicated that his right knee disability has worsened since his last VA examination. Therefore, remand is necessary to obtain a more recent examination.

2. Entitlement to service connection for left knee osteoarthritis is remanded.

The Veteran asserts he is entitled to service connection for a left knee disability, to include as secondary to his service-connected right knee disability. The Board finds that remand is necessary prior to appellate review of this claim.

In a November 2019 VA examination, the examiner opined that the left knee disability is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected right knee condition. The examiner's rationale was that medical records containing clinical notes from 2008 to 2017 of "Normal Gait" and clinical notes in 2009 reporting DJD of bilateral knees suggest that the current left knee DJD is not the result of compensation for the right knee joint. See November 2019 C&P Examination.

The Board finds the November 2019 examination inadequate. VA treatment records indicate that the Veteran walked with a mild limp pattern. See June 2009 CAPRI. In addition, a September 2016 Psychiatric Outpatient Note indicated that Veteran walked with slight limp and appeared uncomfortable when doing so. See CAPRI.  To the extent the November 2019 VA examiner misstated the Veteran's history of a "normal gait" in the treatment records, the opinion is based on an inaccurate factual premise and is therefore of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, remand is required to obtain an adequate opinion as to direct and secondary service connection.

3. Entitlement to service connection for a bilateral hearing loss is remanded.

Remand is required for an adequate VA examination and opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Veteran was afforded a VA examination in January 2018. The examiner opined that there is an entrance audiogram from September 28, 1973, showing normal hearing and an exit audiogram from September 16, 1975, showing that the Veteran's audiometric scores had improved. The examiner noted that there was not a complaints of hearing loss within a year of the Veteran's separation from the military. Therefore, the Veteran's hearing loss is less likely than not (less than 50 percent) caused by or a result of military noise. See January 2018 C&P Examination. The Board finds this examination inadequate as the VA examiner's sole basis for a negative opinion was the absence of documented evidence in his service records. It should be noted that the Veteran is competent to report onset of his symptoms and the absence of documentation in his service records could not be the sole basis for a negative opinion. Accordingly, remand is required for an adequate VA examination and opinion.

4. Entitlement to service connection for hypertension is remanded.

5. Entitlement to service connection for diabetes mellitus type II is remanded.

The Veteran seeks to establish service connection for hypertension and diabetes mellitus type II as due to exposure to herbicide agents during his military service in Korea DMZ. The Board notes that exposure to herbicide agents has not been verified even after several attempts by the RO. See for e.g., DPRIS Response.

The record reflects that the Veteran served in Korea, and that he has current diagnoses of both hypertension and diabetes mellitus type II. See CAPRI.

The fact that a veteran cannot establish service connection for a disability on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38U.S.C. §1113(b); 38C.F.R. §3.304(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, a remand is necessary so that the RO can obtain addendum opinions regarding the etiology of the Veteran's hypertension and diabetes mellitus, to particularly include whether either condition can be attributed to service on a direct basis, without regard to his potential exposure to herbicide agents.

6. Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to May 30, 2018, is remanded.

The Veteran asserts that he is entitled to a TDIU prior to May 30, 2018. As of May 30, 2018, the Veteran has a 100 percent rating for his service connected PTSD. As the Veteran has already been awarded a 100 percent schedular rating as of May 30, 2018, no additional benefits may be paid by an award of a TDIU from May 30, 2018. Therefore, the matter of entitlement to a TDIU from May 30, 2018, onward, is moot and not for adjudication by the Board. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). However, as such is not in effect prior to May 30, 2018, the issue of entitlement to a TDIU, remains on appeal for the period prior to May 30, 2018.

Because a decision on the remanded issues of service connection for hypertension, diabetes mellitus, and a left knee disability; and an increased disability rating for service connected right knee disability, could significantly impact a decision on the issue of TDIU by resulting in an increased combined evaluation for service-connected disabilities prior to prior to May 30, 2018, the issues are inextricably intertwined. A remand of the claim for TDIU is therefore, required.

 

The matters are REMANDED for the following action:

1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment records and associate them with the claims file.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's right knee disability under the rating criteria.

3. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran's left knee disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a review of the entire claims file, the examiner is asked to provide an opinion as to:

(a) whether the Veteran's left knee disability is at least as likely as not (50 percent probability or greater) related to his active service.

(b) whether the Veteran's left knee disability is at least as likely as not (50 percent probability or greater) caused by or aggravated by the service connected right knee disability.

In providing answers to the above, the examiner should specifically consider and comment on the treatment records documenting that the Veteran walked with a slight/mild limp.

A complete rationale must be provided for any opinion provided and must be based on consideration of all pertinent lay and medical evidence.

4. Schedule the Veteran for an appropriate VA examination to determine the nature, onset, and etiology of his claimed bilateral hearing loss. Following a complete review of the record, the examiner is asked to opine on whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss had its onset in, or is otherwise related to active service, to include his acknowledged in-service exposure to noise.

In addressing the above, the examiner MUST acknowledge that the Veteran is competent to report the initial onset of hearing loss and any continuity of symptomology since service. The examiner is advised that the absence of evidence of treatment for hearing loss in the service treatment records cannot, standing alone, serve as the basis for a negative opinion. 

5. Schedule the Veteran for appropriate VA examinations to determine the nature, onset, and etiology of his hypertension and diabetes mellitus. Following a complete review of the record, the examiner is asked to opine on whether it is at least as likely as not (50 percent or greater probability) that the hypertension and diabetes mellitus had their onset during active service or are related to any in-service disease, event, or injury.

The examiner must set forth a complete rationale for any conclusion reached, citing to the examiner's own expertise, medical literature, and/or evidence in the Veteran's claims file as necessary.

If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so.

6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal, including TDIU prior to May 30, 2018, should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a Supplemental Statement of the Case (SSOC) and allowed an appropriate period of time to respond.

 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. M. Rogers, Associate 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.