KNEE IMPAIRMENT OF

Summary

The veteran served from May 2002 to June 2004 and again from October 2007 to March 2010. The veteran appeals the denial of service connection for a heart disability and an increased rating for PTSD, and seeks service connection for left and right knee disabilities and headaches. The Board granted service connection for bilateral knee disabilities, finding that the veteran had current knee pain that was consistently reported since service and resulted in functional impairment, and that the evidence was in equipoise, warranting the benefit of the doubt. The Board denied service connection for a heart disability, finding no current diagnosis of a heart condition despite some in-service complaints of palpitations, and concluding the veteran's lay testimony regarding a heart condition was not competent. The Board denied an increased rating for PTSD, finding that while the veteran experienced symptoms consistent with a 100% rating, the overall evidence did not demonstrate the level of total occupational and social impairment required, with the symptoms more closely approximating a 70% rating. The Board remanded the claim for headaches, finding the VA examiner's opinion inadequate because it failed to reconcile the denial of in-service complaints with the record showing numerous complaints during service and post-service treatment for headaches.

Rationale

Current diagnosis of bilateral knee pain; Pain during and since service; Pain results in functional impairment; Evidence in equipoise; Benefit of the doubt applied

Full Decision Text

Citation Nr: 23001202
Decision Date: 01/09/23	Archive Date: 01/09/23

DOCKET NO. 17-33 185
DATE: January 9, 2023

ORDER

Entitlement to service connection for a left knee disability is granted.

Entitlement to service connection for a right knee disability is granted.

Entitlement to service connection for a heart disability is denied.

Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied.

REMANDED

Entitlement to service connection for headaches is remanded.

FINDINGS OF FACT

1. The Veteran's left knee disability began during active service.

2. The Veteran's right knee disability began during active service.

3. The evidence of record persuasively weighs against finding that the Veteran has had a heart disability at any time during or approximate to the pendency of the claim.

4. The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a left knee disability have been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for entitlement to service connection for a right knee disability have been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for entitlement to service connection for a heart disability have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

4. The criteria for entitlement to a rating in excess of 70 percent for have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the appellant in this case, served on active duty from May 2002 to June 2004, and from October 2007 until March 2010.

These matters come to the Board of Veterans' Appeals (Board) on appeal from September 2014 and February 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

These matters were previously before the Board of Veterans' Appeals (Board) in September 2021 and were remanded for further development, which has been completed.

A March 2022 rating decision granted entitlement to back disability and represents a full grant of the benefit sought on appeal.  Therefore, that issue is no longer in appellate status.

It is valuable to note that the Veteran has already been found to be 100 percent disabled by VA.  The Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) since April 6, 2015.  In this case, the Board is only dealing with the limited outstanding issues that it must address under the law.

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).

Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.03.  Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service.  38 C.F.R. § 3.303 (d).

In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in
 by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.03.  Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service.  38 C.F.R. § 3.303 (d).

In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability.  See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). A disability for VA purposes includes any condition that results in functional impairment of earning capacity.  Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); service treatment records service treatment records Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination.  See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

1. Entitlement to service connection for right and left knee disabilities.

The Veteran contends that he developed chronic knee disabilities during active service that has continued since service  

As to the issue of a current disability, VA treatment records show the Veteran has a current diagnosis of bilateral knee pain, that affect his physical and emotional functioning and quality of life.  See October 2011, August 2015, and October 2019 VA treatment notes.  To the extent that the medical evidence of record indicates that the Veteran has tendinitis/tendonitis of the bilateral knees, this appears to be largely based on the Veteran's lay report of his medical history.  The only evidence of a medical professional diagnosing tendonitis is the October 2011 VA treatment record, which includes an equivocal note that the Veteran "may have infrapatellar tendinitis."  The Board finds that this equivocal note is insufficient to establish a current diagnosis of tendinitis of the bilateral knees.  Thus, pain is the Veteran's only diagnosed
 his physical and emotional functioning and quality of life.  See October 2011, August 2015, and October 2019 VA treatment notes.  To the extent that the medical evidence of record indicates that the Veteran has tendinitis/tendonitis of the bilateral knees, this appears to be largely based on the Veteran's lay report of his medical history.  The only evidence of a medical professional diagnosing tendonitis is the October 2011 VA treatment record, which includes an equivocal note that the Veteran "may have infrapatellar tendinitis."  The Board finds that this equivocal note is insufficient to establish a current diagnosis of tendinitis of the bilateral knees.  Thus, pain is the Veteran's only diagnosed bilateral knee condition.  

Pain without an accompanying diagnosis can constitute a disability.  Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018).  However, as explained in Saunders, a subjective assertion of pain alone does not establish a disability, and "[t]o establish the presence of a disability, a veteran will need to show that [his or] her pain reaches the level of a functional impairment of earning capacity."  Id. at 1368-69.  For these reasons, the Board finds that the Veteran has a current disability of bilateral knee pain.  See Saunders, supra.

Next, the Board finds that the Veteran had bilateral knee pain during service.  See November 2009, December 2009, and February 2010 service treatment notes (noting pain, localized in the knee).

As to the issue of etiology, in October 2011, a year and 7 months following separation from service, the Veteran was seen for bilateral knee pain with movement.  See October 2011 VA Primary Care Nursing Note.  During this visit, the Veteran reported experiencing pain to his knees for a year and a half.  Furthermore, he has competently and credibly reported experiencing knee pain on a regular basis since service.  See October 2011, February 2014, August 2015, and September 2019 VA treatment notes.  Thus, the Board finds that the Veteran has consistently, competently, and credibly reported experiencing bilateral knee pain during and since service.  See Layno, 6 Vet. App. 465, 469.  Furthermore, the April 2017 VA examination report indicated that the Veteran reported having functional loss or impairment due to his bilateral knee pain.  Though the Board in its September 2021 decision deemed the April 2017 VA medical inadequate, the April 2017 VA examination has not been found to be inadequate.  

In addition, the medical evidence indicates that the Veteran's knee pain results in functional impairment Finally, the October 2019 VA Mental Health treatment record indicating that the Veteran's joint pain affected his physical and emotional quality of life or the August 2015 VA primary care note indicated that the Veteran had pain in his knees, that his knees "give out with walking at times," and "?? hyperextension with weight bearing."  

Evidence weighing against a nexus between the Veteran's bilateral knee pain and service includes the April 2022 VA medical opinion, which indicates that neither the Veteran nor the December 2021 VA examiner report function loss or impact due to the Veteran's bilateral knee pain.  However, the medical opinion does not reconcile this conclusion with the October 2019 VA Mental Health treatment record indicating that the Veteran's joint pain affected his physical and emotional quality of life or the August 2015 VA primary care note indicated that the Veteran had pain in his knees, that his knees "give out with walking at times," and "?? hyperextension with weight bearing."  Thus, the April 2022 VA medical opinion is inadequate, as it does not include an adequate rationale and appears to be based on an incomplete medical history.  As the opinion is inadequate, it has no probative value.  

On review, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports the claim for service connection for the bilateral knee disabilities.  As detailed above, the Veteran had bilateral knee disability symptoms during service and since service. In addition, the evidence reflects that the Veteran's bilateral knee disabilities are painful and result in functional impairment, as the knees occasionally give out when walking and hyperextend with weight bearing, thereby interfering with his ability to ambulate steadily, and affect his physical and emotional quality of life. See August 2015 VA primary care note and October 2019 VA Mental Health treatment record.  For these reasons, the Board finds that the three elements of service connection are met.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Saunders v. Wil
 knee disabilities.  As detailed above, the Veteran had bilateral knee disability symptoms during service and since service. In addition, the evidence reflects that the Veteran's bilateral knee disabilities are painful and result in functional impairment, as the knees occasionally give out when walking and hyperextend with weight bearing, thereby interfering with his ability to ambulate steadily, and affect his physical and emotional quality of life. See August 2015 VA primary care note and October 2019 VA Mental Health treatment record.  For these reasons, the Board finds that the three elements of service connection are met.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).

Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current bilateral knee disability arose in service.  Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a bilateral knee disability is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.

2. Entitlement to service connection for a heart disability.

The Veteran contends that his heart disability began during active service and has continued since service.  

The Board concludes that the Veteran does not have a heart disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim.  Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The Veteran's service treatment records show that the Veteran complained of chest pain with palpitations on many occasions.  See, e.g., December 2009 service treatment records.  However, continuous testing in and since service do not reveal a heart disability.  The Veteran underwent a variety of tests and EKGs with inconclusive results.  See, e.g., November 2009 service treatment records; December 2021 VA Examination.  

However, the evidence reflects that the Veteran does not have a currently diagnosed heart condition.  The December 2021 VA examiner evaluated the Veteran and determined that, while he experienced heart palpitations in 2014, no heart condition was noted.  The VA examiner noted that heart palpitations are common and not usually pathological in young healthy patients.  The Veteran's EKG showed a borderline incomplete right bundle branch block (RBBB), but the examiner explained that this is likely an incidental finding.  The Board finds this opinion to be adequate and highly probative, as it is based on examination of the Veteran and review of the record, and is supported by a detailed rationale.  There is no contrary competent and adequate evidence of record indicating a current diagnosis of a heart condition.

Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection.  See 38 U.S.C. §§ 1110, 1131; Rabideau, supra (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability).  "In the absence of proof of a present disability there can be no valid claim."  See Brammer, 3 Vet. App. at 225.

While the Veteran believes he has a current heart disability, he is not competent to provide a diagnosis in this case.  The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the competent medical evidence.

The weight of the competent evidence of record demonstrates that the Veteran does not have a diagnosis of any heart condition.  The Veteran has asserted that he should be entitled to service connection for a heart condition.  However, service connection is only warranted if a claimant has a current disability, which is not supported by the weight of the evidence in this case.

As there is no current disability, the threshold element of the claim has not been met and therefore a discussion of any in-service incurrence or aggravation of a disease or injury, or nexus, is unnecessary. Entitlement to service connection for a heart condition is denied.  

Increased Rating

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.
 connection for a heart condition.  However, service connection is only warranted if a claimant has a current disability, which is not supported by the weight of the evidence in this case.

As there is no current disability, the threshold element of the claim has not been met and therefore a discussion of any in-service incurrence or aggravation of a disease or injury, or nexus, is unnecessary. Entitlement to service connection for a heart condition is denied.  

Increased Rating

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.  When rating the Veteran's service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  

Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

3. Entitlement to a rating in excess of 70 percent for PTSD. 

The Veteran contends that his assigned disability rating is worse than the assigned disability rating reflects.  

The Veteran's PTSD is currently assigned a 70 percent rating under 38 C.F.R. § 4.130, DC 9411, which applies the General Rating Formula for Mental Disorders (General Formula) and provides, in pertinent part, the following criteria for evaluating PTSD:

A 70 percent rating is warranted for symptoms resulting in 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  Id.

A 100 percent rating is warranted for symptoms resulting in 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 name.  Id.

The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations.  Analysis should not be limited to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the rating criteria in determining the level of occupational and social impairment.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence
. § 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation 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.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126.

In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability.  See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). 

Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5).  See 79 Fed. Reg. 149, 45094.  The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014.  Id.  VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014.  See 80 Fed. Reg. 53, 14308 (March 19, 2015). 

Here, the RO certified the Veteran's appeal to the Board after August 4, 2014; therefore, the PTSD claim is governed by DSM 5 and the GAF scores are not relevant for consideration.  See Golden v. Shulkin, 29 Vet. App. 221, 225-26 (2018) (holding that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where DSM-5 applies). 

As will be explained in more detail below, the Board concludes that the Veteran's PTSD symptoms more closely approximate the symptoms associated with a 70 percent rating.  Accordingly, the Board finds that the evidence shows that the criteria for a 100 percent schedular rating have not been met at any time during the pendency of the appeal.

In this regard, December 2015 and January 2022 VA psychiatric examinations and VA treatment records show that the Veteran's PTSD has manifested by symptoms associated with a 70 percent rating: impaired impulse control (such as unprovoked irritability with periods of violence; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships.  The January 2022 VA examiner also noted that the Veteran experienced an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), a symptom associated with a 100 percent disability rating.

However, despite the severity of the service-connected PTSD, he was able to maintain relationships with family members, interacted appropriately with VA treatment providers, and functioned independently.  See September 2015 VA psychology consultation note (noting a good relationship with his step-father and a current girlfriend); December 2022 VA examination report (noting that the Veteran is currently in his third marriage).  He did not display gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or name.  See December 2015 and January 2022 VA psychiatric examination reports and September 2015 VA psychology consultation note.

The Board finds this evidence weighs against finding that the Veteran's PTSD meets the criteria for a 100 percent schedular rating.  The
 September 2015 VA psychology consultation note (noting a good relationship with his step-father and a current girlfriend); December 2022 VA examination report (noting that the Veteran is currently in his third marriage).  He did not display gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or name.  See December 2015 and January 2022 VA psychiatric examination reports and September 2015 VA psychology consultation note.

The Board finds this evidence weighs against finding that the Veteran's PTSD meets the criteria for a 100 percent schedular rating.  The evidence overall does not demonstrate the level of impairment associated with a 100 percent rating, as the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating.  VA treatment records, the December 2015 VA examination, January 2022 VA examination, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating (impaired impulse control; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships), and symptoms associated with a 100 percent rating intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). 

While the Veteran did experience symptoms contemplated by a 100 percent ratingintermittent inability to perform activities of daily livingthe evidence overall does not demonstrate the level of impairment associated with a 100 percent rating.  As noted above, the Veteran's other remaining symptoms are either contemplated by or more consistent with a 70 percent rating.  While the Veteran has been granted a total disability rating based on individual unemployability due to service-connected disabilities, he is not totally socially impaired.  The Board notes further that a higher rating of 100 percent based on total occupational and social impairment generally requires symptoms severe enough to severely distort the individual's perception of reality, which is not shown by the record.  

In short, the evidence of record persuasively weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating.  The criteria for a 100 percent or higher rating are not met and the appeal must be denied.

REASONS FOR REMAND

1. Entitlement to service connection for headaches is remanded.

In December 2021, pursuant to the Board's September 2021 remand directives, the Veteran was afforded a new VA headaches examination.  In an April 2022 addendum opinion, the examiner opined that the STRs and other records failed to provide evidence that there was an organic headache condition during service.  The examiner noted that a psychology treatment note first indicated that the Veteran reported headaches in 2019, 9 years after service, and that service treatment records and other records fail to provide evidence that there was an organic headache disorder during service.  Furthermore, the examiner explained that a headache condition is common and reporting headaches 9 years after separation from service does not constitute sufficient clinical evidence to provide a more likely than not connection to service.   

This opinion is inconsistent with the available medical evidence and records.  Service treatment records show that the Veteran complained of headaches numerous times during active service.  See, e.g., October 2007, November 2009, and December 2009 STRs.  In October 2011, a year and 7 months following separation from service, the Veteran was seen for headaches.  See October 2011 VA Primary Care Note.  He complained of headaches again in February 2012, which were noted to likely be tension headaches.  See February 2012 VA Primary Care Note.  Therefore, April 2022 VA medical opinion is inadequate and remand is warranted to obtain a new VA medical opinion that considers the Veteran's full medical history.

The matters are REMANDED for the following action:

1. Obtain an addendum medical opinion from an appropriate VA examiner, other than the April 2022 VA examiner, to help determine the nature and etiology of the Veteran's claimed headaches.  The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials.

After review of the record, the examiner is asked to provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's current headache condition is related to or caused by service.

***In providing this opinion, the VA examiner should note the following evidence:

a.	October 2007, November 2009, and December 2009 service treatment records showing complaints of headaches.

b.	October
 2022 VA examiner, to help determine the nature and etiology of the Veteran's claimed headaches.  The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials.

After review of the record, the examiner is asked to provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's current headache condition is related to or caused by service.

***In providing this opinion, the VA examiner should note the following evidence:

a.	October 2007, November 2009, and December 2009 service treatment records showing complaints of headaches.

b.	October 2011 VA Primary Care Note indicating that the Veteran was seen for headaches.  

c.	February 2012 VA Primary Care Note, noting complaints of headaches, which were noted to likely be tension headaches.  

2. Then, readjudicate the remaining issue on appeal.

 

 

Megan R. Thomas

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Laura Cochran, 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.