KNEE IMPAIRMENT OF

NATHANIEL J. DOAN · 2023 · Case ID: A23037206

MIXED

Summary

The Veteran served from July 1984 to May 1987. The Veteran appeals the denial of service connection for a bilateral knee disability and an increased rating for PTSD. The Board denied service connection for the bilateral knee disability, finding that while the Veteran has a current bilateral knee condition, the evidence persuasively weighs against a service connection. The Board found the February 2020 VA examiner's opinion, which concluded the disability was less likely than not related to service, to be more probative than the private physician's opinion, which lacked a thorough rationale and review of the Veteran's service treatment records. The Board also denied an increased rating for PTSD, finding that the Veteran's symptoms, while present, did not rise to the level of impairment required for a 70 percent rating. The Board noted the Veteran's continued employment and relatively stable family relationships as factors weighing against a higher rating. The case was remanded for a new VA opinion regarding the bilateral ankle disability due to a pre-decisional duty to assist error in the initial VA opinion, which was found conclusory and lacking adequate rationale. The case was also remanded for a new VA opinion on the right hip disability, as the initial opinion was inadequate and based on the improper premise that the Veteran did not have a current disability.

Rationale

Evidence persuasively weighs against service connection; VA examiner opinion more probative than private opinion; No post-service medical evidence of knee disorder until two decades after service

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200506-86220

Full Decision Text

Citation Nr: A23037206
Decision Date: 12/22/23 Archive Date: 12/22/23

DOCKET NO. 200506-86220
DATE: December 22, 2023

ORDER

Entitlement to service connection for a bilateral knee disability is denied.

Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied.

REMANDED

Entitlement to service connection for a bilateral ankle disability is remanded.

Entitlement to service connection for a right hip disability is remanded.

FINDINGS OF FACT

1. The evidence of record persuasively weighs against finding that the Veteran's bilateral knee disability began during active service or is otherwise related to an in-service injury or disease.

2. The severity, frequency, and duration of the Veteran's PTSD symptoms have not more closely approximated occupational and social impairment with deficiencies in most areas.

CONCLUSIONS OF LAW

1. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for an initial rating in excess of 50 percent for PTSD 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 9411.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1984 to May 1987.

The matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In the May 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the April 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the May 2020 VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

1. Entitlement to service connection for a bilateral knee disability.

The Veteran contends that his bilateral knee disability is etiologically related to service.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Turning to the evidence of record, the Veteran's service treatment records (STRs) note that he sought treatment for left knee pain in September 1984; he was diagnosed with plica syndrome. In January 1985, he sought treatment for left retro patellar pain; he was assessed with unresolved pulled leg muscle. See January 29-30, 1985 STRs. In July 1985, the Veteran reported sustaining injury to the left knee after falling while "playing ball;" he was noted to have contusion to the left knee. His STRs are silent
v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Turning to the evidence of record, the Veteran's service treatment records (STRs) note that he sought treatment for left knee pain in September 1984; he was diagnosed with plica syndrome. In January 1985, he sought treatment for left retro patellar pain; he was assessed with unresolved pulled leg muscle. See January 29-30, 1985 STRs. In July 1985, the Veteran reported sustaining injury to the left knee after falling while "playing ball;" he was noted to have contusion to the left knee. His STRs are silent as to any complaints, treatment, symptoms, or diagnosis of a right knee condition. Additionally, a March 1987 report of medical history noted no abnormalities of the lower extremities.

The Veteran submitted a September 2019 report of consultation and examination completed by private physician, Dr. R.A. He stated that the Veteran suffered from bilateral knee pain, which began during service due to physical training, to include road marches, running on concrete, and constant pounding/compression on his knee joints. He indicated that the Veteran recalled seeing a medic and being offered medication for pain management. Dr. R.A. noted that the Veteran sought treatment by a civilian medical doctor and was diagnosed with bilateral torn medial meniscus; he underwent repair for right medial meniscus tear in 2006 and left medial meniscus tear in 2008. He concluded that the Veteran's bilateral knee pain and dysfunction were directly and casually related to service.

The Veteran underwent a VA examination in December 2019, in which he was diagnosed with bilateral meniscal tear status post repair with residuals. The Veteran reported that his bilateral knees began to bother him in 1986, and that he eventually was seen and treated with "injections" and physical therapy before having right knee meniscal repair surgery in 2007 and left knee meniscal repair surgery in 2008. The Veteran denied seeing a provider for his bilateral knee symptoms since recovering from his bilateral meniscal repairs.

A February 2020 VA medical opinion concluded that the Veteran's bilateral knee disability was less likely than not incurred in or etiologically related to service. The examiner noted that the Veteran was diagnosed with plica syndrome of the left knee in September 1984. She also noted that the Veteran reported having left knee pain for one day in January 1985, and was diagnosed with left knee strain. She further noted that he was subsequently diagnosed with unresolved pulled leg muscle and contusion to the left knee in 1985. She stated that the Veteran's STRs were silent for any right knee complaints, treatment, or diagnosis; and his March 1987 discharge examination made no mention of any knee condition. The examiner noted that the Veteran's bilateral knee meniscal repairs were approximately 20 years after separation from service without any medical evidence of further complaints, treatment or diagnosis of any knee condition. She reasoned that no medical evidence supports a left knee strain resulting in a meniscal tear requiring repair/surgery approximately 20 years later.

Considering the evidence of record, the Board concludes that, while the Veteran does have a current bilateral knee disability, the evidence of record persuasively weighs against finding that the Veteran's disability began during service or is otherwise related to an in-service injury, event, or disease.

The probative evidence of record does not support a finding for service connection. Notably, there is no post-service medical evidence of a knee disorder until approximately two decades after service. This a factor that weighs against a claim for direct service connection. Additionally, the February 2020 VA examiner opined that the Veteran's current bilateral knee disability was less likely than not incurred in or etiologically related to service. The Board finds the examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The Board acknowledges that the Veteran submitted a private medical opinion in support of his claim; however, the Board finds this opinion to be less probative than the VA examiner's opinion. Specifically, there is no indication that Dr. R.A. reviewed the pertinent medical evidence in the claims file, to include the Veteran's STRs. Additionally, his opinion appears to be based on the Veteran's self-reported medical history, and he fails to provide a reasoned explanation for the conclusion reached therein. Id.; Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, the Board gives more prob
ake, 22 Vet. App. 295, 304 (2008).

Moreover, the Board acknowledges the Veteran's assertion that his bilateral knee disability is etiologically related to service. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue as he does not have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board affords more probative weight to the opinion of the February 2020 VA examiner who has greater medical training than the Veteran and exercised medical expertise in rendering her opinion, which she supported with a well-reasoned rationale.

In sum, as the evidence of record persuasively weighs against the claim for service connection for a bilateral knee disability, the benefit-of-the-doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

2. Entitlement to an increased rating for PTSD.

The Veteran contends that he is entitled to a higher 100 percent rating for his PTSD.

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran is currently in receipt of an initial 50 percent rating for PTSD, pursuant to Diagnostic Code 9411.

The Board notes that Diagnostic Code 9411 is subject to the criteria listed under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. 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. 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, 114-18 (Fed. Cir. 2013).

In relevant part, a 70 percent rating is warranted when there is occupational and social
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, 114-18 (Fed. Cir. 2013).

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

A 100 percent rating is warranted 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.

Turning to the evidence of record, in October 2019, the Veteran submitted a PTSD disability benefits questionnaire (DBQ), completed by private psychologist, R.G., in which he was diagnosed with PTSD. She indicated that the Veteran was working as a mechanic and that he reported having difficulty "keeping his inner 'Hulk' in a box" when frustrated. Dr. R.G. noted the following symptoms: anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances (including work or a work like setting), inability to establish and maintain effective relationships, and impaired impulse control (such as unprovoked irritability with periods of violence). Dr. R.G. opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran reported having an "okay" relationship with his wife and children. He also reported getting easily upset, being impatient with others, becoming easily angered, sometimes being overcome by anger, and feeling hopeless. He reported not enjoying social events and avoiding social situations, including parties and other events where crowds are likely to gather. He also indicated being introverted and preferring to be alone.

The Veteran underwent a VA examination in April 2020, in which he was diagnosed with PTSD. The Veteran reported being married for 24 years and having a relatively close relationship with his children. He indicated that he did not have friends or engage in social activities. The Veteran reported having difficulty getting along with co-workers. He denied seeking mental health treatment or taking medication at the time of the examination. He reported being easily irritated and having trouble sleeping. The examiner noted the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The examiner noted that the Veteran was causally dressed, appropriately groomed, his affect was flat, and he appeared withdrawn. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity.

After considering all of the evidence of record, the Board concludes that a rating in excess of 50 percent is not warranted for the Veteran's PTSD.

In this regard, the Board finds that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. Rather, the Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating.

Notably, the symptoms noted have resembled depressed mood, anxiety, suspiciousness, flattened affect, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances (including work or a work like setting), and impaired impulse control (such as unprovoked irritability with periods of violence), and difficulty establishing and maintaining effective work and social relationships.

While the Veteran was noted to experience symptoms contemplated by a 70 percent rating-difficulty adapting to stressful circumstances, impaired impulse control
the Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating.

While the Veteran was noted to experience symptoms contemplated by a 70 percent rating-difficulty adapting to stressful circumstances, impaired impulse control, and inability to establish and maintain effective relationships-the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. Specifically, the evidence of record indicates that the Veteran maintained a good relationship with his wife and children, which he characterized as being "decently close." See April 2020 VA examination. Regarding occupational impairment, he continued to maintain his employment as a mechanic for approximately 23 years, receiving no disciplinary actions. Id. Furthermore, the evidence does not indicate that these symptoms were present daily but rather would increase in severity due to situational stressors such as becoming wound up or frustrated. Thus, the Board finds the severity, frequency, and duration of the Veteran's symptoms have more closely approximated 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 presence or absence of certain symptoms is not necessarily determinative; rather, those symptoms must ultimately result in the level of occupational and social impairment in the referenced areas for a higher rating to be awarded. Vazquez-Claudio, 713 F.3d at 114. Here, the Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating, and result in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating.

In sum, the Board finds that an initial rating in excess of 50 percent for PTSD is not warranted. Accordingly, the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

3. Entitlement to service connection for a bilateral ankle disability.

A December 2019 VA examiner opined that the Veteran's bilateral ankle disability was less likely than not incurred in or etiologically related to service as his STRs are silent for an ankle condition during service and there is no evidence of chronicity of care.

After review of the evidence of record, the Board finds remand is warranted to obtain an addendum medical opinion to correct a pre-decisional duty to assist error. In this regard, the Board finds that the December 2019 VA medical opinion is currently inadequate to adjudicate the issue. Notably, the December 2019 medical opinion is conclusory, relies largely on the absence of evidence in his STRs, and provides insufficient rationale to support its findings.

In sum, the Board finds that the AOJ's reliance on the December 2019 VA medical opinion represents a pre-decisional duty to assist error. As such, remand is necessary to obtain an addendum medical opinion.

4. Entitlement to service connection for a right hip disability.

As an initial matter, in the April 2020 rating decision on appeal, the AOJ conceded a current diagnosis of a right hip disability, and the Board is not permitted to disturb that favorable finding absent clear and unmistakable error, which is not demonstrated here. 38 C.F.R. § 20.801(a); Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018)

After review of the evidence of record, the Board finds remand is warranted to obtain an addendum medical opinion to correct a pre-decisional duty to assist error. Specifically, the Board finds that the December 2019 VA medical opinion is currently inadequate to adjudicate the issue as the opinion is conclusory and is based largely on the improper premise that the Veteran does not have a current disability.

In sum, the Board finds that the AOJ's reliance on the December 2019 VA medical opinion represents a pre-decisional
38 C.F.R. § 20.801(a); Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018)

The matters are REMANDED for the following action:

1. Obtain an addendum medical opinion from an appropriate clinician regarding the etiology of the Veteran's bilateral ankle disability.

Following a review of the claims file, the examiner is asked to opine 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 bilateral ankle disability is etiologically related to service.

A full and complete rationale for all opinions expressed must be provided.

2. Obtain an addendum medical opinion from an appropriate clinician regarding the etiology of the Veteran's right hip disability.

Following a review of the claims file, the examiner is asked to opine 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 right hip disability, to include functional impairment, is etiologically related to service.

A full and complete rationale for all opinions expressed must be provided.

Nathaniel J. Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. Robinson, 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.

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