Citation Nr: 1803859 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-19 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a disability rating in excess of 40 percent for mild degenerative disc disease and degenerative spurring of the lumbar spine. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Army from February 2003 to May 2004, with additional service in the Alabama Army National Guard. The Veteran had overseas service in Iraq and is a recipient of the Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2017. A transcript of the hearing is associated with the claims file. The issues of entitlement to a disability rating in excess of 40 percent for mild degenerative disc disease and degenerative spurring of the lumbar spine, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO for further development. FINDING OF FACT For the entire period on appeal, the Veteran's PTSD symptoms have been productive of occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood; but not total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no higher, for PTSD for the entire period on appeal are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist In this case, 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). II. Legal Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DC). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Under the general rating formula for mental disorders, a 50 percent disability rating is assigned when a veteran's PTSD causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is assigned when a veteran's PTSD causes 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); or an inability to establish and maintain effective relationships. A 100 percent rating is assigned when a veteran's PTSD causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms listed after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). VA is not required to find the presence of all, most, or even some of the enumerated symptoms recited for particular ratings. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating and permits consideration of other symptoms particular to each veteran and disorder and the effect of those symptoms on the Veteran's social and work situation. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). For example, a GAF score of 41 to 50 indicates serious 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 GAF score of 51 to 60 indicates the examiner's assessment of moderate symptoms (e.g., a 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). A GAF score of 61 to 70 indicates the examiner's assessment of some 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 and having some meaningful interpersonal relationships. Ultimately, an examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned. Rather, the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126. The classification outlined in the portion of VA's Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-V). 38 C.F.R. § 4.130 (2016). VA implemented DSM-V, effective August 4, 2014. The Secretary of VA, however, has determined that DSM-V does not apply to claims certified to the Board prior to August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The AOJ certified the Veteran's appeal to the Board in March 2011. When there is an approximate balance of evidence for and against an issue, all doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the RO granted service connection for PTSD in a September 2005 rating decision and assigned a 50 percent disability rating. Later, the RO construed a September 2010 claim for TDIU as a claim for an increased rating for PTSD and confirmed and continued the Veteran's 50 percent disability rating. The Veteran appealed, contending that his symptoms have worsened and that he is therefore entitled to a higher rating. The Veteran was afforded a VA examination in connection with his claim in December 2010. The examiner noted that the Veteran reported for the exam just after having his divorce finalized. He stated that he lives alone, has a solitary job and no social relationships. The Veteran reported that his ex-wife had a protection order against him, and that he had a history of violence and assaultiveness, as demonstrated by a recent incident in which he pushed his wife up against a car. The examiner found the Veteran to be isolated and socially distant during the interview. During the mental status portion of the examination, the Veteran was observed to be clean and neatly groomed, with unremarkable, but restless, psychomotor activity. The examiner noted that the Veteran's speech was "quite intense," as was his affect. However, the examiner found the Veteran to be cooperative. He exhibited unremarkable thought process but was preoccupied with his divorce. He was found to understand the outcome of his behavior. On examination, the Veteran endorsed symptoms of sleep disturbance and hypervigilance, but he denied delusions or hallucinations. He endorsed obsessive and ritualistic behavior, such as having to clean all the time and constantly checking all of the doors. He also endorsed increased irritability and outbursts of anger, as well as an exaggerated startle response. He reported frequent panic attacks, especially when he has to go outside in public, where his heart starts racing and he feels like he was dying. He endorsed homicidal thoughts: "I have plenty of murder thoughts today, but I won't do it, the devil is a lie." He was not found to be suicidal. The examiner found that the Veteran exhibited poor impulse control and had moderately impaired recent memory. The examiner also found that the Veteran experienced recurrent and intrusive distressing recollections of combat, as well as persistent avoidance of associated stimuli. Overall, the examiner found the Veteran to be socially inappropriate, too violent and angry, with intrusive thoughts about the war and problems with behavioral control, and assigned a GAF score of 48. The examiner found that the Veteran's PTSD symptoms negatively impacted occupational functioning by causing decreased concentration, inappropriate behavior, increased absenteeism, and poor social interaction. His symptoms also caused him to be detached and/or estranged from those in his family. The examiner found the Veteran to be "unemployable for PTSD symptoms only," but did not elaborate further. In a questionnaire filled out in connection with a claim for Social Security Disability benefits, the Veteran described himself as very moody, nervous, angry, and "very cautious of others." He reported having no friends, and that he finds it hard to be sociable. He also stated that he has "disturbing dreams." He reported getting along well with authority figures, but also reported that he has been fired or laid off from a job after getting in arguments and fights with co-workers. Accompanying the questionnaire was a March 2014 mental examination report, which showed that the Veteran was found to have a "near phobic type fear of the public" and "still obsess[es] about the war." He reported thinking often about killing people when he was angry, though the examiner found no evidence of hallucinations, delusions, or paranoia. The record indicates that the Veteran was not seen again by VA for PTSD until he was afforded a VA examination in January 2016. During the examination, the Veteran described being in a third marriage, which was not going well. He reported that he worked part time as a mechanic and described himself as a "homebody" who prefer to spend most of his time in his room watching television. He reported nightmares, intense anxiety, and dangerous anger problems. The mental status portion of the examination revealed that the Veteran was dressed casually, oriented, maintained good eye contact, and was in no acute distress. On examination, the Veteran endorsed recurrent distressing dreams, persistent avoidance of stimuli associated with his combat trauma, markedly diminished interest or participation in significant activities, and feelings of detachment or estrangement from others. The Veteran also endorsed irritable behavior and angry outbursts with little or no provocation, typically expressed as verbal or physical aggression toward people or objects. He also endorsed an exaggerated startle response and sleep disturbance. The examiner found the Veteran to be anxious and suspicious, with chronic sleep impairment, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner concluded that the Veteran's PTSD symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In an April 2016 VA mental health treatment note, the Veteran reported no prior treatment of depression or PTSD, and no history of psychosis or mania. He complained of being jumpy and having a bad temper, and described himself as "mean as a rattlesnake." He stated that he does not do well in public and had sleep problems. He described increased irritability and difficulty in social interactions and going to crowded public places. He reported nightmares, night sweats, and insomnia due to racing thoughts and worries. He reported marital stress and discord with his third wife. He endorsed symptoms of hypervigilance. His mental status exam was normal. In a July 2016 VA mental health treatment note, the Veteran reported being easily angered and irritated. He again reported marital discord. He stated that he struggled with difficulty sleeping. He stated that he was not suicidal, but that he struggled with anger, irritability, hypervigilance, and was "snappy" with his family. His mental status examination was normal, and he did not report hallucinations or delusions, nor any homicidal ideations. In an August 2016 VA mental health treatment note, the Veteran reported worsening PTSD symptoms, specifically anxiety. His mental status examination was normal, with no hallucinations or delusions, and no homicidal or suicidal ideations. In a September 2016 VA mental health treatment note, the Veteran reported "crazy dreams" and irritability. In a December 2016 VA mental health examination, the Veteran reported disrupted sleep with nightmares. He also described chronic marital discord. He did not report hallucinations or delusions. In a March 2017 VA treatment note, the Veteran again reported disrupted sleep due to "crazy dreams," but indicated that he was in an overall good mood. During his May 2017 Board hearing, the Veteran reported that he has been on medications to treat his PTSD since 2004. He testified that he has had difficulty maintaining even part-time employment because his PTSD symptoms cause him to have problems with authority figures and increased absenteeism. He testified that he currently works part-time in an office setting and that his co-workers describe him as temperamental. He described feeling isolated at work. After carefully weighing the evidence of record and resolving all doubt in favor of the Veteran, the Board finds that the Veteran's PTSD symptoms warrant an increased disability rating for the entire period on appeal. The Veteran's December 2010 VA examination, subsequent examinations, and mental health treatment notes chronicle significant problems with social interaction due to increased anger, irritability, and resultant decreased impulse control. He was assigned a GAF score of 48, which indicates severe symptoms. The Veteran also exhibited frequent panic attacks, as well as increased hypervigilance and obsessional rituals. Moreover, the Veteran more frequently acknowledged homicidal ideations and admitted to inappropriate behavior. Though the Veteran has been employed for much of the period, the evidence suggests that his PTSD symptoms have limited him to part-time work, at best. However, a higher disability rating of 100 percent is not warranted. As previously discussed, a maximum 100 percent rating requires 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; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. Based on the evidence set forth above, the Board does not find that these criteria have been met, and finds that a 70 percent rating more appropriately captures the Veteran's disability picture for the period. The Veteran has not endorsed persistent hallucinations or delusions. He has not been shown to be unable to perform activities of daily living, and has not exhibited disorientation to time or place, nor memory loss severe enough to forget his name, names of close relatives, or his own occupation. Moreover, the Veteran is capable of working and has maintained some relationships - albeit in a limited fashion at times. Overall, the evidence demonstrates that the Veteran is not "totally" impaired occupationally and socially. Having resolved all doubt in favor of the Veteran, the Board finds that as of December 21, 2010, a 70 percent evaluation is warranted for PTSD. See 38 U.S.C. § 5107(b). To this limited extent, the Veteran's claim is granted. However, the preponderance of the evidence demonstrates that an evaluation in excess of 70 percent is not warranted. As such, this aspect of the Veteran's claim must be denied. ORDER Entitlement to a disability rating of 70 percent, but no more, for PTSD for the entire period on appeal is granted, subject to the regulations governing the award of monetary benefits. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. I. Increased Rating for Low Back Disability The Veteran's claim for an increased disability rating for mild degenerative disc disease and degenerative spurring of the lumbar spine requires a new VA examination, as the evidence suggests that the Veteran's symptoms have worsened since his most recent examination. Specifically, during his May 2017 Board Hearing, the Veteran testified that his low back pain has worsened and is sharper, and his entire left side is now numb. He also testified that he experiences more frequent muscle spasms. Therefore, a new VA examination is required in order to adequately evaluate the Veteran's current level of disability. Additionally, the Board notes that during his most recent VA examination, the Veteran reported experiencing flare-ups, during which he experiences increased pain with more limited range of motion. However, the examiner did not express an opinion concerning whether there would be additional limitations on functional ability on repeated use or during flare-ups. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court of Appeals for Veterans Claims recently held that VA examination reports must address functional loss during flare-ups regardless of whether the veteran was undergoing a flare-up at the time of examination. Therefore, on remand, the Veteran's examination must address functional loss during flare-ups. II. TDIU The Board finds that since the Veteran's claim for an increased rating for his back disability may impact his combined total disability rating, the issue is inextricably intertwined with his claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). As such, a decision on the claim for a TDIU would be premature, and remand is also required pending resolution of the intertwined claims. Accordingly, the case is REMANDED for the following actions: 1. Schedule a VA examination to determine the current severity of the Veteran's service-connected back disability. The Veteran's claims file must be made available to and reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the disability should be identified. The examiner should address range of motion in degrees and any functional loss due to pain or painful motion as well as weakness, excess fatigability, incoordination, or pain on movement, swelling or atrophy. The examiner must address at what point pain sets. Any additional functional loss should be expressed in terms of the degree of additional limitation of motion. The examiner must specifically express an opinion concerning whether there would be additional limitations on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The examiner should also ensure that, consistent with 38 C.F.R. § 4.59, the VA examination report contains range of motion testing, including active, passive, weight-bearing, and non-weight-bearing, including the results following repetitive motion testing and whether there is any functional loss (please describe as stated above). If any of the range of motion testing described above cannot be performed or is not medically appropriate, the examiner should explain why. The examiner is also asked to identify and assess any neurologic impairment attributable to the Veteran's service-connected back disability. 2. Then, readjudicate the appeals, including the Veteran's claim for TDIU. If the claims remain denied, issue a supplemental statement of the case and provide the Veteran and his representative adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs