POSTTRAUMATIC STRESS DISORDER (PTSD)

NATHANIEL J. DOAN · 2023 · Case ID: A23037399

MIXED

Summary

The veteran, who served from August 1973 to October 1995, appeals the denial of an increased rating for right knee anterior cruciate ligament deficiency and the denial of service connection for a low back disability and respiratory insufficiency. The Board granted service connection for PTSD with other specified depressive disorder, finding the veteran's reported combat stressors and subsequent symptoms credible and consistent with service. The Board also granted a 20 percent rating for dislocated semilunar cartilage of the right knee, effective January 20, 2020, and an increased 20 percent rating for right knee strain, effective February 3, 2020, based on VA examination findings of limited flexion and frequent locking/effusion. However, the Board denied a higher rating for right knee anterior cruciate ligament deficiency, finding the evidence did not support moderate recurrent subluxation or lateral instability. The claims for low back disability and respiratory insufficiency were remanded due to inadequate VA examinations; the Board noted a lack of clarity regarding the veteran's low back diagnosis and persistent symptoms since service, and insufficient detail regarding respiratory symptoms and diagnoses from the VA examiners. The Board advised the veteran to file a supplemental claim if he has new evidence regarding his right knee.

Rationale

Veteran diagnosed with PTSD and other specified depressive disorder by private examiner.; Private examiner opined stressors met DSM criteria for traumatic event.; Stressor conceded due to service in Saudi Arabia and reported stressors consistent with service.; Veteran reported persistent symptoms and avoidance behaviors.; Private examiner opined symptoms caused clinically significant distress not attributable to other causes.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200506-86217

Full Decision Text

Citation Nr: A23037399
Decision Date: 12/27/23 Archive Date: 12/27/23

DOCKET NO. 200506-86217
DATE: December 27, 2023

ORDER

Service connection for PTSD with other specified depressive disorder is granted.

A 20 percent rating for dislocated semilunar cartilage of the right knee effective January 20, 2020, is granted.

A 20 percent rating for right knee strain effective February 3, 2020, is granted.

The claim of entitlement to a rating higher than 10 percent for anterior cruciate ligament deficiency of the right knee is denied.

REMANDED

The claim of entitlement to service connection for a low back disability is remanded.

The claim of entitlement to service connection for respiratory insufficiency is remanded.

FINDINGS OF FACT

1. The Veteran's PTSD and other specified depressive disorder are related to his service.

2. The Veteran's right knee manifests with pain, effusion, and locking, as shown at the January 2020 VA examination.

3. His right knee strain manifested with flexion limited to 30 degrees at the February 2020 VA examination.

4. His right knee did not manifest with moderate recurrent subluxation or lateral instability during the period on review.

CONCLUSIONS OF LAW

1. The criteria are met for service connection for PTSD with other specified depressive disorder. 38?U.S.C. §§?1101, 1110; 38?C.F.R. §§?3.102, 3.303, 3.304, 4.125.

2. The criteria are met for a separate 20 percent rating under DC 5258 effective January 20, 2020. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5258.

3. The criteria are met for a 20 percent rating for right knee strain effective February 3, 2020. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260.

4. The criteria are not met for a rating higher than 10 percent for right knee anterior cruciate ligament deficiency. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1973 to October 1995.

This appeal is from an April 2020 rating decision with a notification date of April 20, 2020. The record closed on the date of the notification of the decision on appeal. The Veteran timely appealed to the Board via VA form 10182, asking for placement on the evidence docket. The record reopened for 90 days on the date the appeal was received, but no additional evidence was received.

These claims have been reviewed under the modernized system. The Board does not have authority under the modernized system to conduct independent development. Rather, the Board may remand to correct duty-to-assist errors committed by the AOJ (agency of original jurisdiction) prior to the issuance of the decision on appeal.

Service Connection

1. Service connection for PTSD with other specified depressive disorder is granted.

Service connection is granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38?U.S.C. §§?1110, 1131; 38?C.F.R. §?3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38?C.F.R. §?3.303(d).

Service connection requires competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi,
sustained while on active duty service. 38?U.S.C. §§?1110, 1131; 38?C.F.R. §?3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38?C.F.R. §?3.303(d).

Service connection for PTSD, in particular, requires: (1) medical evidence diagnosing the condition in accordance with?38?C.F.R. §?4.125(a); (2) a link, established by medical evidence, between the current symptoms and the in-service stressor; and, (3) credible supporting evidence that the claimed in-service stressor occurred.?38?C.F.R. §?3.304?(f). Section?4.125(a) requires that PTSD be diagnosed pursuant to the?American Psychiatric Association?Diagnostic and Statistical Manual for Mental Disorders (DSM).

The record shows the Veteran was diagnosed with PTSD and other specified depressive disorder by a private examiner in October 2019. The Board notes that a February 2020 VA examiner did not diagnose any disability at all. No additional clarifying opinion was obtained. Both examinations appear adequate. Under these circumstances, the Board finds that this doubt is resolved in his favor, and that he has a current disability.

The Veteran reported a number of stressors, including being involved in a fire on a F-111 aircraft, being in reasonable proximity of a SCUD missile strike, and witnessing fellow airmen be struck and killed. The private examiner indicated that all of these stressors met the criteria for a traumatic event under the DSM. The Board notes that a stressor has been conceded due to his service in Saudi Arabia, and that the reported stressors are consistent with the terms of his service.

The Veteran reported recurring dreams of the traumas, as well as dissociative reactions. He reported avoiding reminders, both internal and external. He described a pattern of persistent avoidance of external reminders of the traumatic events, including crowded locations, people, and conversations, which is related to his traumatic exposure. The private examiner opined that he had persistent and exaggerated negative beliefs and expectations about others and the world related to the trauma. He hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. The Veteran reported that his symptoms began shortly after returning from his deployment. The private examiner opined that his symptoms were causing clinically significant distress that was not attributable to substances or another medical condition.

Based on this evidence, the Board finds that service connection is warranted and this appeal is granted.

Increased Rating

2. A 20 percent rating for dislocated semilunar cartilage of the right knee effective January 20, 2020, is granted.

3. A 20 percent rating for right knee strain effective February 3, 2020, is granted.

4. The claim of entitlement to a rating higher than 10 percent for anterior cruciate ligament deficiency of the right knee is denied.

Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38?U.S.C. §?1155; 38?C.F.R. §§?3.321(a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See generally 38?C.F.R. Part 4. If two disability evaluations are potentially applicable, 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. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38?C.F.R. §?4.3.

The Veteran's claim for an increased rating for the right knee was received in December 2019. It was already service connected, therefore, the period on review includes the year preceding receipt of the claim. 38 C.F.R. § 3.400(o). The period on review closes on the date of the issuance of the decision.

The Veteran's right knee is currently separately rated under DC 5257, which pertains to
rating. Otherwise, the lower rating will be assigned. 38?C.F.R. §?4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38?C.F.R. §?4.3.

The Veteran's right knee is currently separately rated under DC 5257, which pertains to recurrent subluxation and lateral instability, and under DC 5260, which pertains to limited flexion of the leg, both at 10 percent. 38 C.F.R. § 4.71a.

The Board notes that the rating criteria for orthopedic disorders was amended effective February 2021. Those amendments are not for application in this decision, as they were not effective until after the decision on appeal was issued.

Under the provisions effective prior to February 2021, DC 5257 allowed a 10 percent rating for slight symptoms of recurrent subluxation and lateral instability, a 20 percent for moderate, and a 30 percent for severe. Id., DC 5257.

Under DC 5260 for limited flexion, a 0 percent rating is assigned when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and, a 30 percent rating when limited to 15 degrees. Id., DC 5260. Normal range of motion of the knee is from 0 to 140 degrees. Id., Plate II. The Board notes, when rating disabilities based on limited motion, the rater must consider any functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness, along with the schedular criteria. DeLuca v. Brown, 8?Vet. App.?202 (1995); see also 38?C.F.R. §§?4.40 and 4.45. Painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13?Vet. App.?31, 34 (1999); Hicks v. Brown, 8?Vet. App.?417, 421 (1995); 38?C.F.R. §?4.59. Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38?C.F.R. §?4.59.

Turning to the evidence, the Board notes that he has reported no private treatment for the right knee. He has some VA treatment that does not provide anything probative to this claim.

He was provided VA examinations in January 2020 and February 2020.

At the January 2020 VA examination, the Veteran complained of episodes of locking. He was found to have a meniscal tear, as well as effusion and pain in the joint. The Board finds this evidence warrants a 20 percent rating under DC 5258, effective from January 20, 2020. Under DC 5258, frequent episodes of "locking," effusion, and pain due to dislocated semilunar cartilage warrants a 20 percent rating. 38 C.F.R. § 4.71a. This is the highest rating available under this code. The record does not show these symptoms in the period prior to the January 2020 VA examination, and the Veteran has not asserted differently.

At the February 2020 VA examination, his right knee flexion was to 30 degrees. This corresponds to a 20 percent rating under DC 5260.

The Board considered whether a higher rating based on functional loss was warranted, but does not find support in the evidence. The Veteran did not report flares at either examination. He did report that his right knee made it difficult for him to stand or walk for prolonged periods. However, there is nothing showing that his functional limitations have ever reduced his flexion to 15 degrees or less, or to an equivalent of that level, which is required for the next higher rating. 38?C.F.R. §§?4.40, 4.59; DeLuca, supra. Indeed, both examiners opined that his function would not be significantly limited after repetitive use over
rating under DC 5260.

Accordingly, a rating of 20 percent effective February 3, 2020, but no earlier, under DC 5260 is warranted. The record does show this level of loss prior to the February 2020 VA examination. A rating higher than 20 percent for the period starting in February 2020 is not warranted.

The Board does not find that a higher rating is warranted for the Veteran's lateral instability of the right knee. The Board notes that objective medical evidence is not required to show instability under the previous version of DC 5257, but that the Veteran has not made any assertions regarding the right knee. English v. Wilkie, 30 Vet. App. 347, 353 (2018). At both VA examinations, his right knee was stable during stability testing. The January 2020 VA examination shows he uses a brace on the left knee only.

The record does not show limited extension, ankylosis, impairment of the tibia and fibula, or genu recurvatum. Accordingly, ratings under the codes pertaining to those disabilities are not warranted.

In sum, the above decision is based only on the evidence of record when the April 2020 rating decision was issued, because the Veteran did not submit additional evidence during the reopened window. Based on review of that evidence, the Board is granting a separate 20 percent rating under DC 5258 for dislocated semilunar cartilage (torn meniscus) effective January 20, 2020, and an increased 20 percent rating under DC 5260 for limited flexion effective February 3, 2020. The Board is denying a higher rating under DC 5257 for lateral instability.

The Board advises the Veteran that if he has relevant evidence pertaining to the right knee or whether higher ratings are warranted for limited flexion or lateral instability, he is encouraged to file a supplemental claim (VA form 20-0995) within a year of the issuance of this decision.

REASONS FOR REMAND

1. The claim of entitlement to service connection for a low back disability is remanded.

2. The claim of entitlement to service connection for respiratory insufficiency is remanded.

The Board finds that the VA examinations obtained for the above two claims are inadequate, and that it was error for the AOJ (agency of original jurisdiction) to rely upon them.

As for the back, the Veteran submitted an October 2019 private medical opinion that he was diagnosed with low back syndrome, which had started while the Veteran was in service and persisted. The February 2020 VA examiner diagnosed low back strain, without discussion of low back syndrome or consideration that the Veteran reported persistent symptoms since service. The April 2020 VA opinion noted that there was no objective evidence for a diagnosis of the back with no further discussion of the strain diagnosed in February 2020, or of the functional loss identified during that examination, or of the October 2019 private medical opinion. In sum, it is not clear whether he has a diagnosis of the back or not: if he does, then the VA medical opinion is inadequate for failure to address the Veteran's reports of symptoms since service; if he does not, then it appears that service connected is warranted for an undiagnosed lumbar spine disability. On remand, clarification must be obtained.

As for the respiratory disability, there is a similar lack of clarity. The February 2020 VA examiner indicated the Veteran was diagnosed with respiratory insufficiency, as per the October 2019 private medical opinion, but without further discussion of the shortness of breath and wheezing noted by the private examiner. However, the April 2020 VA examiner then indicated that pulmonary function tests were normal, and provided no further discussion of the Veteran's symptoms or reports of having symptoms since his service. On remand, a more detailed medical examination and opinion must be obtained.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an appropriate examination for a report on whether the Veteran
must be obtained.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an appropriate examination for a report on whether the Veteran has a chronic lumbar spine diagnosis causing functional loss. The examiner is asked if there is no diagnosis, then to simply state as much. The examiner is asked whether lumbar strain diagnosed at the February 2020 VA examination would be considered a chronic or acute disability.

If there is a diagnosis, the examiner is asked whether it is approximately as likely as not that it incepted during service and has continued to the present. The examiner is asked to elicit from the Veteran a detailed report of his symptoms in and since service. If there is any medical reason to accept or reject his assertions that his symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

All opinions must be accompanied with explanation.

2. Schedule the Veteran for an appropriate examination for a report on whether the Veteran has a diagnosis causing respiratory symptoms, or if not, any symptoms of respiratory insufficiency or otherwise causing functional loss. The examiner is asked to elicit from the Veteran a detailed report of his symptoms in and since service. If there are no objective symptoms, or diagnosis, the examiner is asked to so state.

All opinions must be accompanied with explanation.

Nathaniel J. Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Gibson, Amanda

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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