Citation Nr: 1757792 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 11-28 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent prior to September 19, 2016, and in excess of 50 percent from September 19, 2016 to the present day for posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 10 percent for residuals of a fractured coccyx. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to August 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from January and May 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The January 2010 rating decision granted service connection for PTSD, assigning a 10 percent disability rating effective April 28, 2009. The May 2010 rating decision continued a 10 percent disability rating for residuals of a fractured coccyx. In an October 2016 rating decision, the Veteran's initial rating for PTSD was increased to 30 percent from April 28, 2009 and increased to 50 percent beginning September 19, 2016. As the Veteran has not been granted the maximum benefit allowed for PTSD for the entire appeal period, the claim is still active, as characterized on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). On his October 2011 VA Form 9, it appears the Veteran is raising a service-connection claim for a low back disability other than his service-connected coccyx fracture residuals. Such has not been adjudicated by the agency of original jurisdiction (AOJ), and the matter is referred to the AOJ for appropriate action. In August 2016, the Board remanded the appeal to the RO for additional development. The matter has been returned to the Board for further appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The evidence of record demonstrates that the severity of the Veteran's PTSD has waxed and waned over the course of the appeal period manifesting in symptoms that at worst, cause occupational and social impairment with reduced reliability and productivity. 2. The evidence of record demonstrates that the Veteran's coccyx fracture has been productive of painful residuals. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial disability rating of 50 percent, but no higher, for the Veteran's service connected PTSD, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2017). 2. An increased rating greater than 10 percent for residuals of a fractured coccyx to include on an extraschedular basis is not warranted. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.55, 4.56, 4.59, 4.71a; Diagnostic Code 5298 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits and to assist claimants in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 U.S.C.A. § 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Applicable Laws and Regulations Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the VA Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 2014), 38 C.F.R. Part 4 (2017). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from a service-connected disability. 38 C.F.R. § 4.1 (2017). Where there is a question as to which of the two evaluations shall 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 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R. § 4.2. PTSD PTSD is evaluated under VA's General Rating Formula for Mental Disorders. Under the formula, a rating of 30 percent is warranted for PTSD if there is 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, recent events). A 50 percent rating is warranted when there is 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 understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where 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; 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. Id. A 100 percent rating is warranted when there is 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 own name. Id. Psychiatric examinations frequently include assignment of a Global Assessment Functioning (GAF) score. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). During the periods on appeal, the Veteran has been assigned GAF scores ranging from 40 to 65. A GAF of 31 to 40 indicates some impairment in reality testing or communication (e.g. speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed man avoids friends, neglects family, and is unable to work). A score of 41 to 50 is assigned where there are "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." A score of 51 to 60 is appropriate where there are "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." GAF scores ranging from 61 to 70 are assigned where there are "mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) 47 (4th ed. 1994). The Board notes that the newer American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5) has now been officially released and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 has eliminated the GAF scale. However, since much of the relevant evidence was obtained during the time period that the DSM-IV was in effect, the Board will still consider this information as relevant to this appeal. As the United States Court of Appeals for the Federal Circuit has held, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's 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. See 38 C.F.R. § 4.126(a). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). The Veteran and his representative contend that prior to September 19, 2016, the Veteran's PTSD symptomatology warrants a rating higher than that of 30 percent. In June 2009 the Veteran received VA treatment for his PTSD. During this visit, the Veteran reported having flashbacks, nightmares and trouble sleeping. The examiner noted the Veteran was emotional when explaining that the examination marked the anniversary of when he was "blown up" in Vietnam. See June 2009 Progress Notes at Page 5. The Veteran reported that his "main problem was sleeping at night although he is somewhat nervous during the day." Id. The examiner noted the Veteran was alert and cooperative but also "noticeably depressed." Id. The Veteran denied having any hallucinations or suicidal or homicidal ideations. The Veteran's GAF score was reported as 40, a serious level of severity. In a December 11, 2009 VA treatment visit, the Veteran complained similarly of having flashbacks, nightmares and trouble sleeping. The Veteran's GAF score was similarly reported at 40. Later in the month, on December 29, 2009, the Veteran had a VA psychiatric examination. The examiner noted the Veteran presented with a generally euthymic mood, a mildly restricted affect, and was well groomed and fully oriented. The examiner found no evidence of impairment of thought process or communication, delusions or hallucinations, significant memory loss, panic attacks or ritualistic behavior. The Veteran denied any suicidal or homicidal ideations. The examiner noted the Veteran did not meet the criteria for depression. The examiner also noted that the Veteran has some meaningful interpersonal relationships. See December 2009 VA Examination at Page 6, 9. The Veteran was noted as having some leisure functioning, "although much of his leisure functioning is solitary in nature." Id at 9. Concerning the severity of the Veteran's PTSD, the examiner opined "the Veteran's current level of symptoms if fairly mild, partially due to effective medication treatment." Id. The Veteran's GAF score was noted as 65, a mild level of severity. Id. In October 2010, VA treatment records notes no specific PTSD symptoms reported at that time. The Veteran's GAF score was reported as 55, a moderate level of severity. See Chillicothe VA Treatment Record at Page 421. In March 2011, VA treatment records reflect the Veteran complained of nightmares. Id at 360. In an August 2011 VA treatment record, the Veteran complained of occasional nightmares, flashbacks and difficulty sleeping. No panic attacks were reported but the Veteran did report jumping upon hearing loud noises. The Veteran also admitted he sits with his back to the wall in restaurants. The Veteran's GAF score was reported as 55. See August 2011 VA Progress Notes at Page 6. In March 2012, the Veteran reiterated complaints of nightmares, flashbacks, trouble sleeping, sitting with his back to the wall in restaurants and being startled by loud noises. The examiner noted the Veteran's GAF score as 56 and that this points to moderately severe PTSD. See Chillicothe VA Treatment Record at Page 256. In October 2012, the examiner noted the Veteran "appeared sad". Id. at 214. In June and September 2013 the Veteran reported having nightmares. Id. at 136, 166. In September 2014, the Veteran denied any experiencing depression, anxiety, or suicidal or homicidal ideations. Id. at 34. In September 2016, the Veteran was afforded a VA examination. During this examination, the Veteran reported his social relationships are "near to none." See September 2016 VA Examination at Page 2. However, the Veteran reported spending three to four times a week with his grandchildren, including fishing with them once a week. The Veteran did report that he had not visited his friends who live locally for about two years. He attributed this to the death of a friend, from Vietnam that he had been taking care of in his home. This death brought back a lot of memories of a "particularly frightening battle in Vietnam in which this friend was one of three men to survive." Id. at Page 3. The Veteran reported that his mother had recently passed away. He expressed that this was stressful. The Veteran reported he used to be active in a variety of Veteran's organization, but it has "become harder for me to be around the public [as] they are more and more unpredictable (concerns about violence and safety)." Id. The Veteran reported that he had to separate himself from doing PTSD related work because he felt he was going to "lose some more of myself." Id. The Veteran's affect was noted as congruent and his mood dysphoric. His speech was noted as slurred; however the examiner said this was possibly attributable to his dentures. The Veteran's speech was noted as largely goal-directed and coherent. The Veteran denied suicidal or homicidal ideations and there was no evidence of any auditory or visual hallucinations, perceptual disturbances or bizarre mentation. The September 2016 VA examiner opined: One notable change for the Veteran since his last examination in his report is that his feelings of detachment from others has increased since the death of his friend (2012), which has negatively impacted his social functioning, as evidenced by reported decrease in social interaction with friends with whom he previously met with regularly, decreased involvement in the activities of the Veteran's organizations he is a member of. Further, the Veteran is reporting increased symptoms associated with hypervigilance and negative beliefs about the world, due to recent violent world events that present concerns for safety. As a result, the Veteran's symptoms associated with PTSD appear to be at a mild to moderate level of severity at this time in comparison to his evaluation completed in 2009. Id. at Page 8. Crucially, the September 2016 VA examiner observed that the Veteran's prior examination results reflect that the Veteran has "evidenced a waxing and waning pattern of symptoms over the years," which is quite comment for an individual who meets the diagnostic criteria for PTSD, as PTSD is not a static diagnosis or condition. Upon review of the evidence of record, the Board first finds that at no time during the pendency of the appeal has the Veteran exhibited symptoms manifesting in total occupational and social impairment, warranting the assignment of a 100 percent rating, or symptoms manifesting in occupational and social impairment, with deficiencies in most areas, warranting the assignment of a 70 percent rating. Indeed, the Veteran has denied experiencing hallucinations, delusions, panic attacks, and suicidal or homicidal ideations. He has not been shown to engage in obsessional rituals that interfere with routine activities. He has not exhibited illogical or obscure speech. He has shown the ability to function independently despite symptoms of depression. He has not demonstrated impaired impulse control (such as unprovoked irritability with periods of violence). He has not neglected his personal appearance, nor has he shown difficulty adapting to stressful circumstances, or an inability to establish and maintain effective relationships, causing occupational and social impairment to a degree contemplated by the 70 percent rating. The Veteran has discussed spending time with his son and fishing with his grandchildren, and VA examiners' assessments have shown that the Veteran's psychiatric symptoms have been mild to moderate in degree throughout the course of the appeal. While the Board recognizes that early in appeal period the Veteran's physicians assigned GAF scores as low as 40, these scores were not congruent with the assessments of record at the time, as the Veteran did not exhibit impairment of reality testing, and was shown to be interactive with others, was in a relationship at the time, without impaired judgment or thinking. When the Veteran's disability has been assessed as being more mild in severity, the his symptoms reflect difficulty with depression and nightmares, jumpiness, without complaint of panic attacks, or memory or judgement impairment. He was noted as having meaningful interpersonal relationships with his family. When more moderate in severity, to include at the September 2016 VA examination, the Veteran's symptoms reflect occupational and social impairment with reduced reliability and productivity. The Veteran described difficulty maintaining effective social relationships, and reported spending less time with friends and working with Veteran oriented organizations. The Board adds that although the September 2016 VA examiner noted the Veteran's symptoms were mild to moderate in severity, the examiner's overall assessment was that the Veteran's PTSD manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported being in a relationship, that he reads quite a bit, enjoys spending time with his family, fishing, and taking a walk once a week. That stated, in light of the fact that the September 2016 examiner noted waxing and waning symptoms, that the evidence described above confirms such fluctuations in severity indeed exist, and that the Veteran's PTSD symptoms at worst were shown to be moderate in severity, the Board will resolve all doubt in the Veteran's favor, and award a 50 percent rating, but no higher, for entirety of period on appeal. To this extent only, the benefit sought on appeal is granted. Residuals of Fractured Coccyx Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. In this case, the Veteran is seeking an increased rating for residuals of a fractured coccyx, which has been service-connected since 1981, with a 10 percent disability rating under 38 C.F.R. § 4.71a , DC 5298 [removal of the coccyx], effective in 1991. Under Diagnostic Code 5298, a noncompensable rating is warranted for removal of the coccyx without painful residuals. A maximum 10 percent rating under DC 5298 is warranted for partial or complete removal of the coccyx, with painful residuals. The Board notes that the 10 percent rating that has been assigned is the highest allowable schedular rating under this diagnostic code. Therefore, a rating in excess of 10 percent is not warranted on a schedular basis under DC 5298. In considering whether a separate or alternate rating is more appropriate, the Board has reviewed the medical evidence of record and finds that, although the Veteran has symptoms of radiating pain down his legs and painful limitation of motion of the spine, such symptoms are associated with other nonservice-connected disabilities (i.e. DDD of the lumbar spine with radiculopathy and lumbar spondylosis) and not his coccyx fracture residuals. Indeed, the Veteran had a VA examination in January 2010. The Veteran complained of stiffness, pain, weakness and fatigability. Objective evidence of painful motion and weakness were noted. However, the examiner opined that the complaints made by the Veteran are less likely than not the result of his service-connected residuals of a fractured coccyx. In April 2010 a VA examiner reviewed the Veteran's complete file. Although the Veteran contended that he suffered from incontinence of stool and urine, which can suggest spinal problems, the examiner opined "even if there [are] those complaints currently, that would be sacral region symptoms, not coccyx and again there is no mention of other spinal regions being implicated in the injury." See April 2010 VA Medical Opinion at Page 1-2. The examiner goes on to say "My opinion is that his back pain is due to age and normal deterioration of the lumbar discs. There is no indication that the injury causing fracture of the coccyx should have any long lasting effects." Id at 2. The Veteran was afforded a VA examination in September 2016, in which his thoracolumbar spine was examined. It was noted that the Veteran occasionally used a walking stick for assistance. The Veteran reported ongoing issues with pain in his lower back, near his belt line which radiates down into the inner aspects of his legs. The examiner noted that the Veteran had severe constant pain, numbness, and paresthesias and/or dysesthesias in his right and left lower extremities due to radiculopathy. It was also noted that the Veteran has arthritis of the spine. Crucially, the VA examiner provided the following opinion and rationale: The Veteran is currently [service connected] for residuals of coccyx fracture. He also carries concurrent diagnoses of lumbar DDD with radiculopathy, lumbar spondylosis. The lumbar radiculopathy is at least as likely as not (50 percent or greater probability) proximately due to or the result of the lumbar DDD/spondylosis. It would be resorting to mere speculation on the part of the examiner to attempt to attribute the degree of pain symptoms which are secondary to the [service connected] condition versus the non-[service connected] condition. The limitations in motion are at least as likely as not (50 percent or greater probability) secondary to the lumbar DDD/spondylosis. Id. Although it is clear that the Veteran experiences radiating pain down his legs, as well as limitation of motion in the spine, such symptoms have been medically ascribed to the Veteran's nonservice-connected lumbar DDD with radiculopathy, lumbar spondylosis. To the extent the Veteran has pain at the base of his spine that cannot be distinguished from lumbar spine pain, such pain symptomatology is compensated under DC 5298 with the assignment of a 10 percent rating for painful residuals. The Board has considered the Veteran's statements that his fracture residuals should be rated higher than 10 percent, and finds his assertions of pain symptoms to be both competent and credible. However, the probative medical opinions of record described above demonstrate that the Veteran's coccyx fracture residuals are unrelated to the other spine and leg symptoms that the Veteran currently experiences. The Board finds these medical assessments informative as to whether additional symptoms other than coccyx pain are associated with the Veteran's service-connected disability, and in turn whether additional or alternate ratings are appropriate. In this case such is not demonstrated, and the 10 percent rating currently assigned under DC 5298 is warranted. Although an increased rating is not warranted on a schedular basis, the Board has also considered whether an increased rating is warranted on an extraschedular basis. Although the Board may not assign an extraschedular rating in the first instance, it must adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). As noted above, the Veteran's pain symptoms are contemplated by the rating criteria, which specifically allows for a 10 percent rating for pain residuals. All other functional loss has been attributed to nonservice-connected disabilities. Moreover, even if the schedular criteria were not adequate, there is no indication that the Veteran's coccyx fracture residuals, in and of themselves, cause marked interference with employment or frequent periods of hospitalization. Thus, referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. Based on the evidence of record, the Board determines that an increased rating for residuals of a fractured coccyx is not warranted for any period on appeal. As such, the appeal is denied. ORDER An initial rating of 50 percent, but no higher, for PTSD is granted. A rating in excess of 10 percent for residuals of a fractured coccyx is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs