Citation Nr: 1804442 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 15-37 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to a disability rating in excess of 20 percent for residuals of a lumbar strain. 3. Entitlement to a disability rating in excess of 10 percent for a left knee disability, internal, post ACL reconstruction. 4. Entitlement to a disability rating in excess of 10 percent for a right knee disability, post ACL reconstruction. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel INTRODUCTION The Veteran served honorably with the United States Army from March 2008 to December 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO) in North Little Rock, Arkansas. These issues were previously before the Board and were remanded in August 2017 in order to afford the Veteran a videoconference hearing. The Veteran testified before the undersigned Veterans Law Judge at an August 2017 videoconference hearing. A transcript of the hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of increased rating for right and left knee disabilities and a lumbar spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT For the entire rating period on appeal the Veteran's service-connected PTSD symptoms most nearly approximated a disability picture manifest by psychiatric symptoms causing occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas is not shown. CONCLUSION OF LAW The criteria for an increased evaluation, in excess of 50 percent for the Veteran's service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. § 3.159 (2017). As an initial matter, the Board notes that VA's duty to notify was satisfied by a letter sent to the Veteran in June 2013. See id.; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate any claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (c)(4). In this case, service treatment records, post-service VA outpatient records, private treatment records and lay statements have been associated with the record and have been reviewed by both the AOJ and the Board in connection with the claims herein decided. The Board finds that VA has satisfied its duty to obtain available Federal records with regard to the issues herein decided. See 38 C.F.R. § 3.159 (c)(2). The Veteran was afforded VA examinations in October 2013 and September 2016. The September 2016 VA examiner reviewed the Veteran's claims, his electronic records, and conducted an in-person interview. These examinations are adequate because the examiners discussed the Veteran's medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). For the foregoing reasons, the Board finds that VA has satisfied its duty to notify and its duty to assist. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159 (b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating for PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Veteran's PTSD has been rated as 50 percent disabling under Diagnostic Code 9411 from June 18, 2013. The criteria provide for a 50 percent rating is appropriate where the evidence shows 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 (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. A 70 percent rating is appropriate where the evidence shows 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 work-like setting); inability to establish and maintain effective relationships. Diagnostic Code 9411 provides for a 100 percent rating where the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought process 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. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet App. 436 (2002). Prior to August 4, 2014, one factor in evaluating psychiatric disorders was the global assessment of functioning scale (GAF). The scale was meant to represent psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM - IV)). Under DSM-IV a GAF score between 41 and 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 score in between 51 and 60 indicates moderate 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 coworkers). GAF scores ranging from 61 to 70 indicate that a veteran has some mild psychiatric symptoms (e.g., depressed mood and mild insomnia) or experiences some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household). VA regulations were amended to remove references to the DSM-IV, and to replace them with references to the Fifth Edition of the same treatise (DSM-5). 79 Fed. Reg. 45,093-02, 45,094 (August 4, 2014). DSM-5 abandoned the global assessment of functioning score as a tool for evaluating the severity of psychiatric disorders. Since the regulatory change implementing the DSM-5 criteria applies only to applications for benefits received by VA on or after August 4, 2014, the Board may consider the global assessment of functioning scores in the Veteran's treatment records and examination reports. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In October 2013 the Veteran underwent a VA examination and was diagnosed with PTSD. The examiner determined that the Veteran's psychosocial and environment problems included past life-threatening combat trauma, some degree of social withdrawal and irritability, continued painful re-experiencing phenomenon, some difficulties with concentration and focus impacting on work and academic performance. He was assigned a GAF score of 65 and was described as having occupational and social impairment with occasional decrease in work efficiency. At the time of the examination, the Veteran had been married for six months, but experienced some marital discord due to emotional withdrawal and impatience and irritability on his part. Although the Veteran described a general decreased level of interest in most previously pleasurable social activities, but he still enjoyed interactions with his family. The Veteran was working full time at a factory and taking nine hours of college courses online. He described some difficulty in work and academic settings due to concentration and focus difficulties, in part due to anxiety and hyper-vigilance. It was noted that the Veteran first sought treatment for PSTD due to feelings of anxiety and irritability. In diagnosing the Veteran with PTSD the examiner found that the Veteran experienced events that involved actual or threatened death or serious injury to himself and others and his response involved intense fear, helplessness and horror. He had recurrent and distressing recollections of these events, often causing him to have difficulties with concentration and focus. He had a decreased level of difficulty with distressing dreams, but his wife reported that he continued to be quite agitated in his sleep. The Veteran suffered distress when exposed to cues that resembles aspect of the traumatic event, such as people talking about the war or unexpected loud noises. The Veteran made efforts to avoid thoughts, feelings and conversations associated with these traumas. He also made efforts to avoid activities, places or people that arouse recollections of the traumas, such as crowds or small spaces. The Veteran had a loss of interest in previously pleasurable activities, such as athletic activities and going to the gym, as well as most social interactions. He also described some ongoing difficulty with feelings of anxiety. It was also noted that the Veteran had difficulty falling and staying asleep. He experienced some difficulty with irritability impacting on family relations, some difficulty with concentration and focus impacting on work performance and causing him to forget to complete tasks. It was found that the Veteran was hyper-vigilant, still having to scan his perimeter and watch the side of the road. He startled easily. In addition to the symptoms of PTSD noted above, the Veteran described symptoms of anxiety, chronic sleep impairment, some difficulty with concentration and focus causing him to forget to complete tasks. He had some disturbances of motivation and mood and some difficulty in establishing and maintaining effective social relationships. The Veteran described periods of irritability. He denied suicidal ideations. In September 2016 the Veteran underwent a second VA examination which confirmed his PTSD diagnosis. The examiner listed chronic service-connected back pain as a medical diagnosis relevant to the understanding or management of the mental health disorder. He also found that the Veteran's occupational and social impairment could be summarized as occupational and social impairment with reduced reliability and productivity. The Veteran was still married at the time of his examination, but described some difficulty at home due to irritability and emotional withdrawal. He also described some pleasurable social activities, particularly revolving around his children, but sometimes is uncomfortable in crowds. Since his previous examination, the Veteran completed a bachelor's degree in accounting. After leaving the Army, the Veteran worked in managerial position in a factory, and for the previous two years had worked as a deputy Sheriff. However, the Veteran had to leave the workplace in May of 2016 for back surgery due to his service-connected back condition. He was told that he would not be able to return to work due to his physical condition. He stated that he was doing well in his job assignments, except for some occasional difficulties with concentration and focus due to anxiety and hypervigilance. The Veteran's intrusive symptoms included recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event, intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event and marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event. The Veteran also avoided stimuli associated with the traumatic event, which was evidenced by avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event, and avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event. Alterations in cognitions and mood associated with the traumatic event included persistent and exaggerated negative beliefs or expectations about oneself, others, or the world, persistent, distorted cognitions about the cause or consequences of the traumatic event that lead the individual to blame himself/herself or others, persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame), markedly diminished interest or participation in significant activities and feelings of detachment or estrangement from others. Marked alterations in arousal and reactivity associated with the traumatic event were evidenced by irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance, exaggerated startle response, problems with concentration and sleep disturbance. The symptoms that applied to the Veteran's diagnosis included anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner noted that the Veteran was alert, oriented and cooperative. He appeared discouraged and his affect was constricted. His thoughts were clear and goal oriented. There was no evidence of delusions or hallucinations. His cognitive abilities were grossly intact, although he described some difficulty with concentration in the workplace due to episodes of anxiety and hypervigilance. He denied suicidal ideation. In closing, the examiner remarked that the Veteran continued to suffer from service-connected, combat related PTSD. He appeared to be in danger of being unable to function in the workplace due to his service-connected physical condition, and if that is the case, he was at risk for a worsening of his PTSD, but at that point, his symptoms and difficulties from PTSD did not appear to have increased since the last evaluation. During his August 2017 video conference, the Veteran testified that he had recently increased his medication and was aided by a service dog. He also testified that he interacts with his family on a regular basis, but did not socialize much. The Veteran had not experienced a panic attack in over a year and had never been hospitalized due his PTSD. In fact, the Veteran stated that he did not believe his PTSD had increased in severity. Based upon this review of the record, the Board finds the Veteran's symptoms and limitations are consistent with a 50 percent disability rating. A review of the evidentiary record indicates that the Veteran was capable of regular and sustained social interactions with others based on his employment and managerial position at a factory. Although the Veteran experienced symptoms of depressed mood, chronic sleep impairment, flattened affect, disturbances of motivation and mood and difficulty establishing and maintaining effective work and social relationships, his overall disability picture was more closely approximate to a 50 percent disability evaluation. As such, the Board finds the lay and medical evidence of record is consistent with a disability rating of 50 percent for the entire disability period. In reaching this determination, the Board notes that the Veteran has never reported symptoms such 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; spatial disorientation or neglect of personal appearance and hygiene, which would be consistent with a 70 percent disability rating. Therefore, considered in its totality, the Board finds the evidence, as discussed above, is consistent with a 50 percent disability evaluation for the entire rating period. Accordingly, entitlement to a disability evaluation in excess of 50 percent for PTSD is denied. ORDER Entitlement to an increased rating, in excess of 50 percent, for the Veteran's service-connected PTSD is denied. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an increased rating of his right and left knee disabilities and lumbar spine disability. The Veteran was provided VA examinations for his bilateral knee disabilities and lumbar spine disability in September 2016. Although these examinations were fairly recent and contemporaneous in time, the Board finds the examinations were not fully adequate. Specifically, the Court in Correia v. McDonald, No. 13-3238 (Vet. App. July 5, 2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. In addition, as relevant to the present case, the Court stated in Correia that knees were "undoubtedly weight-bearing." Id. A review of the claims file reveals that neither the July 2013 and September 2016 VA knee and spine examinations, nor VA or private treatment records demonstrate range of motion testing for both knees or spine in passive motion, weight-bearing, and nonweight-bearing situations. In short, these VA knee and spine examinations were inadequate. Thus, at present, none of the medical evidence of record fully satisfies the requirements of Correia and 38 C.F.R. § 4.59. As such, new VA knee and spine examinations are necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected bilateral knee disabilities and lumbar spine disability. In order to comply with the Correia case, it is requested that the VA examiner test the range of motion for both knees and lumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing situations. If such testing cannot be performed, the examiner must explain why such testing could not be performed. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should schedule the Veteran for an appropriate VA lumbar spine examination to ascertain the current severity and manifestations of his service-connected lumbar spine disability. Access to the VBMS and Virtual VA electronic claims files must be made available to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examination should include a statement on the effect of the Veteran's service-connected lumbar spine disability on the Veteran's occupational functioning and daily activities. The VA examiner should provide a complete rationale for any opinions provided. In particular, in order to comply with the Court's recent precedential decision in Correia v. McDonald, No. 13-3238 (Vet. App. July 5, 2016), the VA lumbar spine examination must include range of motion testing for the joints involved in the following areas: * Active motion; * Passive motion; * Weight-bearing; and * Nonweight-bearing. If the VA examiner is unable to conduct all the required testing or concludes that certain aspects of the required testing are not necessary or are not relevant for the lumbar spine, he or she should clearly explain why that is so. 2. The AOJ should secure the appropriate VA knee examination to ascertain the current severity and manifestations of the Veteran's service-connected right and left knee disabilities. Access to the VBMS and Virtual VA electronic claims files must be made available to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examination should include a statement as the effect of the Veteran's service-connected right and left knee disabilities on the Veteran's occupational functioning and daily activities. The VA examiner should provide a complete rationale for any opinions provided. In particular, in order to comply with the Court's recent precedential decision in Correia v. McDonald, No. 13-3238 (Vet. App. July 5, 2016), the VA knee examinations must include range of motion testing for both knees in the following areas: * Active motion; * Passive motion; * Weight-bearing; and * Nonweight-bearing. If the VA examiner is unable to conduct all the required testing or concludes that certain aspects of the required testing are not necessary or are not relevant for the knees, he or she should clearly explain why that is so. 3. The AOJ should notify the Veteran that it is his responsibility to report for any scheduled VA lumbar spine examination and knee examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled VA examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above development, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the increased rating issue on appeal for the lumbar spine and right and left knees. If any of the benefit sought is not granted, issue a Supplemental Statement of the Case ("SSOC") and allow the Veteran and his representative an opportunity to respond. 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs