Citation Nr: 1753846 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 08-12 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial evaluation for posttraumatic stress disorder (PTSD) in excess of 30 percent prior to December 17, 2014, and in excess of 70 percent thereafter. 2. Entitlement to an evaluation in excess of 10 percent for arthritis of the right ankle prior to January 8, 2015, and to an evaluation in excess of 20 percent thereafter, excluding a period during which the Veteran was awarded a temporary 100 percent convalescence rating. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel INTRODUCTION The Veteran served honorably in the U.S. Army from June 1966 to June 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran and his spouse appeared and testified before the undersigned Veterans Law Judge at a videoconference hearing in December 2015. A transcript of the hearing has been associated with the Veteran's claims file. The Board previously considered these matters in April 2016. At that time, the Board expanded the issue on appeal to include the issue of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). It remanded that issue in addition to the issue of increased evaluations for a right ankle disability and PTSD. With respect to the Veteran's claim for an increased evaluation for PTSD, the Board specifically directed the RO to associate any outstanding VA treatment records with the claims file, readjudicate the claim, and issue a Supplemental Statement of the Case. The Board is satisfied that there has been substantial compliance with its directives with respect to the issue of entitlement to an increased evaluation for PTSD. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to an increased evaluation for a right ankle disability and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to December 17, 2014, the Veteran's PTSD was not manifested by occupational and social impairment with reduced reliability and productivity. 2. Beginning on December 17, 2014, the Veteran's PTSD has not been manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to December 17, 2014, the criteria for an evaluation in excess of 30 percent for PTSD were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2017) 2. Beginning on December 17, 2014, the criteria for an evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C. § 7104 (2012); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. Id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. I. Legal Standard Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2016). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). On a claim for increased rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. For the period before December 17, 2014, the Veteran has been assigned a 30 percent rating for his PTSD under Diagnostic Code 9411, which is part of the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. On that date, he was assigned a 70 percent rating for PTSD under Diagnostic Code 9411. Under the General Rating Formula, a 30 percent evaluation contemplates 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). A 50 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where the disorder is manifested by 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 that is 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; and an inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. A veteran "may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Symptoms listed in the General Rating Formula serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. They are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). II. Prior to December 17, 2014 With respect to the period prior to December 17, 2014, the Board finds that a rating in excess of 30 percent for the Veteran's PTSD is not warranted Throughout the period on appeal, the Veteran or his representative have repeatedly contended that his PTSD symptoms warrant an increased evaluation. However, a review of the record indicates that the preponderance of the probative and credible evidence does not support an evaluation in excess of 30 percent for the period prior to December 17, 2014. In a statement from as early as November 2005, the Veteran reported that his PTSD-related symptoms continued to bother him and included flashbacks, sleeping problems, nightmares, and intrusive memories. The Veteran also reported at the May 2006 VA examination that he had difficulties sleeping three to four times per week, nightmares two to three times per week, flashbacks during the day, difficulty dealing with crowds, and he stated that he was frequently withdrawn from coworkers and family. He also noted that he had "blown up" at work twice during his career and engaged in verbal abuse and threatening posturing towards a supervisor. Notwithstanding these symptoms, the Veteran did acknowledge at that time that he had not engaged in physical violence with others or thrown or broken objects. He also stated that he engaged in chores and maintained his household with his wife, was able to tend to his own daily needs, and had a few close friends with whom he interacted. Of particular relevance here, the Veteran also indicated that he was at that time employed as a maintenance worker and reported good work attendance. Upon examination, the Veteran was noted to be appropriately dressed and adequately groomed, alert and oriented, maintained good eye contact, and had appropriate thought processes. He was ultimately assigned a Global Assessment of Functioning (GAF) score of 55, which the examiner indicated was indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. The Board finds that the Veteran's ability to maintain employment and friendships at that time despite his PTSD symptoms, and the lack of any reports of abnormal judgment or abstract thinking or more than weekly panic attacks, suggests that the Veteran's PTSD symptoms more closely approximated the 30 percent evaluation in accordance with the General Rating Formula for Mental Disorders. Treatment records from 2007 and 2008 continued to include similar GAF scores ranging from 50 to 61. VA treatment records from that time indicate that the Veteran presented at times with a somewhat constricted affect, anxious and dysthymic mood, and occasionally impaired concentration. However, the Veteran did not have suicidal or homicidal ideation at VA clinical visits at that time. The record indicates that the Veteran also continued to maintain his employment despite his symptoms. Although the Veteran reported in an April 2008 statement that he did not, in fact, have good relationships with his family because his wife would not sleep with him due to his nightmares, a VA treatment note from March 2008 indicated that the Veteran enjoyed going shopping with his wife as long as the places were not crowded, and stated that the Veteran continued to engage in activities with his son. These ongoing activities suggest that the Veteran's PTSD did not rise to the level of occupational and social impairment contemplated by the 50 percent evaluation for mental disabilities. A VA treatment record from April 2009 continued to show relatively modest psychological symptoms and indicates that the Veteran was considering attending a reunion with other Veterans, continued to work, and began assisting with his son's baseball team. A VA clinical note from April 2011 also included a mental status examination that found the Veteran to have a euthymic mood and affect, fluent speech, and no signs of abnormal thought processes, delusions, suicidal or homicidal ideation, or hallucinations. Ultimately, the Veteran's treatment records and examination reports generally fail to include the severity or frequency of psychological abnormality that is contemplated by the 50 percent evaluation for the period prior to December 2014. These records do not include consistent evidence of abnormal speech, panic attacks more than once a week, impairment of short and long term memory, difficulty understanding complex commands, or impaired judgment or abstract thinking that are set forth in the criteria for a 50 percent evaluation. Taken with the reports of the Veteran's ability to maintain employment for a significant portion of the period prior to December 2014 and his ongoing social and familial activities, to include his assistance with his son's baseball team, the Board finds that the preponderance of the probative evidence indicates that the Veteran's PTSD symptoms more closely approximated the criteria for a 30 percent evaluation prior to December 17, 2014. III. Beginning December 17, 2014 In a rating decision from May 2016, the Veteran was assigned a 70 percent evaluation for his PTSD effective December 17, 2014. That date coincides with a medical examination that the Veteran was afforded to assess the severity of his psychological disability. Although the Veteran and his representative have argued that his PTSD warrants a higher evaluation, the Board does not find that the preponderance of probative evidence from this period satisfies the criteria for a 100 percent evaluation for PTSD. As noted above, such an evaluation requires the showing of total occupational and social impairment. The General Rating Formula for Mental Disorders includes representative signs and symptoms that would warrant such a rating, including grossly inappropriate behavior, disorientation to time or place, and persistent delusions or hallucinations. The record simply does not contain the psychological abnormalities that would suggest he experiences total social and occupational impairment. For instance, at the December 2014 medical examination that prompted his 70 percent evaluation, the Veteran reported maintaining good relationships with his brother, wife and sons and indicated that he continued to have a good relationship with a friend and neighbors. Although he indicated that he tended to avoid social contact, he stated that he got along adequately with acquaintances and people on the street. PTSD symptoms reported at that time included a depressed mood, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, and disturbances of motivation or mood. The Veteran also had infrequent suicidal ideation at that time, but was not considered an imminent risk of harm to himself by the examiner. Upon examination, the Veteran reportedly was cooperative despite an intermittently mildly agitated affect and he had clear, logical, and generally goal-directed speech despite requiring redirection at times. In contrast to the criteria for a 100 percent evaluation that includes references to an intermittent inability to maintain minimal personal hygiene, the Veteran was also observed to be appropriately dressed at that time. This evidence does not rise to the level of "total" social and occupational impairment that is contemplated by the criteria for a 100 percent evaluation for PTSD. The Board has also considered the testimony of the Veteran and his spouse at the December 2015 videoconference hearing. At that hearing, the Veteran reported that he experienced panic attacks during which he would have to go to his room and lie down. He also reported memory problems, including trouble remembering people's names. The Veteran's spouse also testified that she no longer slept in the same room with the Veteran because the Veteran had become violent while sleeping, including one night where he chased her down the hall while asleep. The Board notes that the Veteran and his spouse are competent to describe these observable symptoms and has no reason to doubt the sincerity of their statements. However, the Board ultimately finds that they do not describe the severe psychological signs and symptoms that warrant a rating in excess of 70 percent. For instance, they do not suggest that the Veteran has experienced persistent delusions or hallucinations, that he has intermittently lost the ability to perform activities of daily living, including maintaining his personal hygiene, or that he was disoriented to time or place. They also did not allege that the Veteran required any inpatient treatment for his psychological symptoms. The Board acknowledges that the Veteran did ultimately retire from his job due to his service-connected disabilities. However, the Veteran reported at the December 2014 VA psychological examination that the Veteran retired primarily due to ankle pain. After reviewing the record, the Board ultimately finds that the Veteran's psychological symptoms due not rise to the level of severity contemplated by the criteria for a 100 percent evaluation and do not represent total occupational and social impairment. As such, his claim for an evaluation in excess of 70 percent must be denied. IV. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran's claim for a higher initial rating for PTSD arises from the Veteran's disagreement with the initial rating assigned after service connection was granted. Where an underlying claim for service connection has been granted and there is disagreement as to "downstream" issues, including the rating initially assigned for the disability, the claim as it arose in its initial context has been substantiated and there is no need to provide additional notice concerning the downstream elements of the claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Instead of issuing additional notice concerning the initial disability rating, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if disagreement regarding the initial rating is not resolved. Goodwin v. Peake, 22 Vet. App. 12 2008). The SOC was properly issued in this case, and the Veteran therefore has received all required notice concerning the downstream initial-rating claim. The record also indicates that VA has obtained all identified private psychological treatment records, provided the Veteran with multiple psychological examinations, and has obtained VA treatment records. The Board also notes that there have been no allegations that VA has not satisfied its duty to assist the Veteran in the development of his claim for an increased evaluation for PTSD. As such, the Board is satisfied that the requirements to notify and assist the Veteran have been met. ORDER An initial evaluation in excess of 30 percent for PTSD prior to December 17, 2014, is denied. An evaluation in excess of 70 percent for PTSD beginning December 17, 2014, is denied. REMAND As noted above, these matters were previously remanded in April 2016. At that time, the Board expanded the claim to include the issue of entitlement to a TDIU pursuant to Rice. In its remand directives, the Board instructed the RO to adjudicate the claims and, if the benefits sought on appeal remained denied, to provide the Veteran a Supplemental Statement of the Case (SSOC). Although the Veteran was provided an SSOC with respect to the issues of entitlement to increased evaluations for a right ankle disability and PTSD in August 2016, that SSOC did not address the issue of entitlement to a TDIU. The record is devoid of any other adjudicative action taken by the RO to develop this claim. Once the Board remands a matter, it confers on the appellant a right for compliance with remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). As such, the Board must again remand the issue of entitlement to a TDIU so that the AOJ may comply with the Board's remand directives. The Board also finds that it must remand the issue of entitlement to an increased evaluation for a right ankle disability. In the course of the instant appeal, the Veteran was afforded a medical examination to assess the severity of his right ankle disability. That January 2015 evaluation ultimately led to the assignment of a 20 percent evaluation for this service-connected disability. However, whenever VA has undertaken the effort to afford a claimant an examination, whether or not such an examination is required, VA must provide an adequate examination "or, at a minimum, notify the claimant why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be fully informed. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). If an examination report is inadequate or fails to contain sufficient detail, the Board is required to return the report. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). The Board also recognizes that an opinion that is based upon an inaccurate factual premise has no probative value and it stands to reason that any such opinion is inherently inadequate for VA purposes. See Reonal v. Brown, 5 Vet. App. 458 (1993). Unfortunately, it appears that the January 2015 examination is not adequate for VA purposes. Specifically, this examination report includes initial range of motion testing suggesting the Veteran had plantar flexion to 30 degrees in the right ankle and dorsiflexion to 20 degrees in the right ankle. The examiner also stated that flare-ups or repeated use would cause additional limitation in the right plantar flexion to 20 degrees. These values suggest that the Veteran continued to experience some range of motion in his right ankle. However, this examiner also stated that the Veteran had right sided ankylosis in plantar flexion that was "15" degrees less. Generally, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)). An ankylosed joint is more commonly referred to as "frozen." See e.g. Dorland's Illustrated Medical Dictionary 286 (32d ed.2012) (Frozen shoulder, also called adhesive capsulitis, is an "adhesive inflammation between the joint capsule and the peripheral articular cartilage of the shoulder ... characterized by shoulder pain of gradual onset, with increasing pain, stiffness, and limitation of motion."). The January 2015 examination report therefore appears to contain an inherent contradiction insofar as it states that the Veteran had up to 30 degrees of plantar flexion and 20 degrees of dorsiflexion in his right ankle, but also states that the right ankle is also ankylosed in plantar flexion. As such, the Board does not contain sufficient information from this examination report to properly evaluate the severity of the Veteran's right ankle disability and the examination report must be returned. The Board also observes that the United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The January 2015 medical examination does not include range of motion measurement of the Veteran's left, undamaged ankle and does not contain any statement as to why such measurement is not possible. As such, the Board finds that this examination report must also be returned to comply with the holding in Correia. Finally, the Board notes that the record includes discharge instructions from a private treatment provider relating to lower-extremity symptoms in July 2016. At that time, the Veteran was prescribed narcotics and was scheduled for a follow-up visit. However, the record does not contain the underlying treatment records relating to this clinical visit or indicate whether it relates to the Veteran's right ankle. As this evidence potentially relates to the Veteran's claim for an increased evaluation for his right ankle disability, the AOJ should attempt to secure these records upon remand. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran's claims file. 2. Contact the Veteran and ask him to identify and authorize release for any private treatment records relating to any of his service-connected disabilities, to include the episode of care relating to lower extremity symptoms from July 2016. Make reasonable attempts to obtain and associate with the claims file any records that are identified. 3. Thereafter, schedule the Veteran for a medical examination with an appropriate medical professional to determine the current severity of his right ankle disability. The examiner is to be given a complete copy of the claims file and should indicate review of the same in the examination report. All tests and studies deemed necessary should be completed. The examiner is asked to explicitly comment on whether or not the Veteran has ankylosis. The examiner is also asked to provide both active and passive range of motion measurements in each of the Veteran's ankles. The examiner should also describe, to the extent practicable, the degree of additional loss of function in terms of range of motion caused by flare-ups or repetitive use. If the examiner feels that a description of any such additional loss is not possible without resorting to mere speculation, the examiner should explain why (e.g. the question is beyond the scope of medical knowledge). However, the examiner should not provide such an answer without taking a full history from the Veteran of any functional loss during flare-ups or after repetitive use, including a specific history of the precipitating factors, frequency, and severity of any such flare-ups or loss of function during flare-ups or after repetitive use. The examiner is also asked to describe the functional effects of the Veteran's right ankle disability on his ability to engage in work-related activities. 4. After ensuring compliance with the above directives, engage in any other development deemed necessary, to include consideration of whether additional medical examinations or opinions are necessary to describe the functional effects of the Veteran's service-connected disabilities on his ability to secure and follow gainful employment. 5. Thereafter, readjudicate the Veteran's claim for an increased evaluation for a right ankle disability and his claim for an entitlement to a TDIU. If either claim is not granted in full, provide the Veteran and his representative a Supplemental Statement of the Case and allow them an appropriate amount of time to respond before returning the case to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs