Citation Nr: 22048024 Decision Date: 08/23/22 Archive Date: 08/23/22 DOCKET NO. 19-14 539 DATE: August 23, 2022 ORDER Entitlement to a disability rating of 50 percent, but no higher, for an acquired psychiatric disorder, as of November 15, 2018, is granted. REMANDED Entitlement to a right knee disability, to include degenerative joint disease, is remanded. FINDING OF FACT As of November 15, 2018, the severity, frequency, and duration of the Veteran's symptoms most closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW As of November 15, 2018, the criteria for a 50 percent disability rating, but no higher, for the Veteran's PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served in the United States Army from September 1997 to February 2006. These matters come before the Board of Veterans' Appeals (Board) from an appeal of a November 2018 rating decision of the Department of Veterans Affairs' (VA) Veterans Benefits Administration (VBA). The Veteran testified before the undersigned Veterans Law Judge in May 2022, and a transcript of that proceeding is associated with the claims file. With regard to the acquired psychiatric disorder claim, neither the Veteran nor his representative raise any remaining issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). With regard to the knee claim, the Board regrets further delay, but a remand is necessary in order to obtain an adequate medical opinion and relevant records. 1. Entitlement to a disability rating of 50 percent, but no higher, for an acquired psychiatric disorder, as of November 15, 2018, is granted. The Veteran asserts his acquired psychiatric disorder, which was originally claimed as insomnia, and which now is diagnosed as posttraumatic stress disorder (PTSD), entitles him to a disability rating in excess of 30 percent. See, e.g., May 2022 hearing transcript. During the pendency of this claim, VBA increased the Veteran's disability rating for PTSD from 30 percent to 50 percent, effective August 21, 2021. See June 2022 rating decision. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. See AB v. Brown, 6 Vet. App. 35 (Vet. App. 1993). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Disabilities must be reviewed in relation to their history. Where there is a question as to which of two evaluations apply, the Board assigns the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (Vet. App. 1991). A veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Accordingly, separate ratings may be assigned for separate periods of time based on the facts found, which is a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (Vet. App. 1999); Hart v. Mansfield, 21 Vet. App. 505 (Vet. App. 2007). Pyramiding, that is the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes (DCs), is to be avoided when evaluating a Veteran's service-connected disability. See 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (Vet. App. 1994). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (Vet. App. 2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 30 percent or higher. The Board concludes that the Veteran's symptoms caused the level of impairment required for a disability rating of 50 percent, but no higher, as of November 16, 2018. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. VA treatment records, the February 2022 VA examination, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 50 percent rating, including feelings of detachment, isolation, irritability, angry outbursts, depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, and difficulty establishing and maintaining effective work and social relationships. See, e.g., February 2022 VA psychiatric examination. The Veteran also reports he experiences panic attacks two or three times a month. See May 2022 hearing transcript. He also had symptoms that are not listed with a specific rating, such as distressing memories of stressor events, use of alcohol as a means to avoid anxiety and panic symptoms, hypervigilance, tension, "feeling trapped," feelings of guilt, shame, and regret, and crying episodes. See, e.g., February 2022 VA psychiatric examination. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. The Veteran reported that these symptoms were not present daily, but would increase in severity two or three times a month. See May 2022 hearing transcript. The Veteran has repeatedly denied any suicidal or homicidal ideation. See, e.g., May 2022 PTSD follow-up clinic group note. This finding is based on a "holistic analysis" of the claims file and includes a review of the Veteran's psychiatric treatment records covering the period on appeal. See, e.g., April 2018 psychiatric outpatient evaluation; May 2022 PTSD follow-up clinic group note. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating. Mental status examinations in both VA treatment records and the February 2022 VA examination indicate that the Veteran's level of impairment most closely approximated occupational and social impairment with reduced reliability and productivity. See, e.g., February 2022 VA psychiatric examination. The Board acknowledges that the Veteran reported during his hearing that he felt his symptoms occasionally rose to the level contemplated by a 70 percent rating. However, the evidence overall does not demonstrate that level of impairment. Instead, a review of the Veteran's PTSD group meetings indicate that on average, the Veteran was alert and attentive, cooperative, possessed normal speech, normal and coherent thoughts, without hallucinations, delusions, and good insight and judgment. The Veteran's mood ranged from good to anxious to irritated. See, e.g., February 2022 PTSD follow-up clinic general note. Additionally, at the Veteran's hearing, the undersigned Veterans Law Judge found the Veteran to be possess clear speech and a good understanding of complex issues. With regard to the effective date, the Board finds there is no specific date in the claims file that the Veteran's symptoms "worsened" to the level contemplated by a 50 percent rating. Accordingly, the Board affords the Veteran the benefit of the doubt and dates the award of a 50 percent disability rating to the day after his psychiatric examination on November 14, 2018. That examination found that the Veteran's symptoms more closely approximated the level contemplated by a 30 percent rating. See id. For the above reasons, entitlement to a 50 percent disability rating, but no higher, effective November 15, 2018, is granted. REASONS FOR REMAND 1. Entitlement to a right knee disability, to include degenerative joint disease, is remanded. The Veteran asserts his right knee disability was caused or is aggravated by his service-connected shin splints. See, e.g., May 2022 hearing transcript. The Veteran is entitled to service connection for shin splints. See, e.g., June 2022 rating code sheet. Unfortunately, a remand is necessary to obtain an adequate opinion. The Veteran was afforded a VA examination of his right knee, wherein the examiner opined that it was less likely than not (less than 50 percent probability) that his right knee disability was proximately due to his shin splints. See November 2018 VA knee examination. The examiner offered no opinion on an aggravation theory of secondary service connection. See id. Additionally, the Veteran has a diagnosis of right knee osteoarthritis. See, e.g., May 2022 internal medicine - IMC progress note. Arthritis is listed as a "chronic disease" for which a Veteran may be presumptively entitled to service connection if the arthritis manifested within one year of discharge from service. See 38 C.F.R. § 3.309. The examiner did not address this potentiality. Finally, the examiner also did not discuss the Veteran's lay reports of an injury in-service. See id. The Veteran has testified that he suffered a knee injury during a fall onto some rocks. See, e.g., May 2022 hearing transcript. While the examiner may choose not to believe a Veteran's self-reported history, an examiner is not free to disregard the Veteran's reports of symptoms in and since service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (Vet. App. 1994); Dalton v. Nicholson, 21 Vet. App. 23 (Vet. App. 2007). The Board may not rely on an opinion that disregards lay evidence that is potentially competent to support the presence of disability, even where the lay evidence is not corroborated by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Accordingly, a remand is necessary to obtain an adequate examination. A remand is also necessary to obtain relevant records. The Veteran has stated that he was seen by a private primary care provider and orthopedist. See November 2018 VA knee examination. He further stated that those doctors indicated there may be a relation between his shin splints and his knee disability. See id. The records from these providers are not associated with the claims file. Accordingly, a remand is necessary for VA to attempt to obtain these records. The matters are REMANDED for the following action: 1. VBA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. Specifically, VBA should attempt to obtain records from the Veteran's private primary care provider and orthopedist. See November 2018 VA knee examination. VBA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. All attempts to obtain records should be documented in the case file. 2. Schedule the Veteran for a VA examination for his right knee disability. The examiner must review the claims file, including this remand. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: a. Is the Veteran's right knee disability related to service, including as due to a fall onto rocks during active service? b. Did the Veteran's right knee osteoarthritis (1) begin during active service, (2) manifest within one year after discharge from service, or (3) Was noted during service with continuity of the same symptomatology since service? c. Is the Veteran's right knee disability proximately due to his service-connected shin splints? d. Is the Veteran's right knee disability aggravated, i.e., worsened by his service-connected shin splints? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maisel, S. Alexander 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.