Citation Nr: 18142704 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-30 088 DATE: October 16, 2018 ORDER Entitlement to an initial 70 percent rating prior to May 29, 2012 for service-connected other specified trauma and stressor related disorder is granted, subject to the rules and regulations governing the award of monetary benefits. Entitlement to an initial rating in excess of 50 percent from May 29, 2012 for service-connected other specified trauma and stressor related disorder (hereinafter “psychiatric disorder”) is denied. REMANDED Entitlement to service connection for a left foot disorder is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded FINDINGS OF FACT 1. Prior to May 29, 2012, the Veteran’s psychiatric disorder was productive of no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. From May 29, 2012, the Veteran’s psychiatric disorder has been productive of no more than occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. Prior to May 29, 2012, the criteria for an initial 70 percent rating for a psychiatric disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9413. 2. From May 29, 2012, the criteria for an initial rating in excess of 50 percent for a psychiatric disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.21, 4.126, 4.130, DC 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to July 1980 and from November 1990 to July 1991, with additional service in the Army Reserves. The record raises the question of whether the Veteran is unemployable due to his service-connected disabilities. See April 2012 Goldsboro Psychiatric Clinic, PA report. The Board notes that a TDIU is considered part and parcel to the determination of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Accordingly, the Board has taken jurisdiction over the claim for a TDIU as reflected above. 1. Entitlement to an initial rating in excess of 50 percent rating for a psychiatric disorder. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s psychiatric disorder, is rated under the General Rating Formula for mental disorders. Under the General Rating Formula, a rating of 50 percent is warranted for a mental disorder that results in 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; and difficulty in establishing and maintaining effective work and social relationships. A rating of 70 percent is warranted for a mental disorder that results in 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); and inability to establish and maintain effective relationships. A 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/others; intermittent inability to perform activities of daily living (such as maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Importantly, evaluations under § 4.130 are 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). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In the case at hand, the Veteran is currently assigned an initial disability rating of 50 percent for his service-connected psychiatric disorder. As will be discussed more fully below, the Board finds that the evidence is at least in equipoise as to whether a higher initial 70 percent rating is warranted for the period prior to May 29, 2012. From May 29, 2012, however, a higher initial 70 percent rating is not warranted. In April 2012, the Veteran underwent a private psychological evaluation. See April 2012 Goldsboro Psychiatric Clinic, PA report. The private examiner diagnosed the Veteran with chronic posttraumatic stress disorder (PTSD) and chronic major depression. The Veteran reported symptoms of nightmares, flashbacks, panic attacks, constant anxiety, intrusive thoughts, hypervigilance, social isolation, impaired recent and working memory, difficulty concentrating, anger, sadness, fear, difficulty learning new information, difficulty processing emotions, auditory hallucinations, easily angered and agitated, and suicidal thoughts. The examiner indicated that the Veteran was severely compromised in his ability to sustain social relationships and was unable to sustain work relationships. The examiner also indicated that the Veteran was permanently and totally disabled and unemployable. The Veteran’s private treatment records dated prior to May 29, 2012 also show symptoms of occasional hallucinations, intrusive thoughts, hypervigilance, increased startle response, sleep impairment, memory problems, flashbacks, depression, anxiety, suicidal thoughts, mood swings, and agitation/anger. These treatment records also indicated that the Veteran was able to socialize with other veterans, but could not handle crowds. See Goldsboro Psychiatric Clinic, PA treatment records. On May 29, 2012, the Veteran underwent a VA examination to assess his psychiatric disorder. See May 2012 VA Examination report. The examiner diagnosed the Veteran with anxiety disorder NOS, as his symptoms did not meet the diagnostic criteria for PTSD. The Veteran reported symptoms of chronic sleep impairment, anxiety, and irritability or outbursts of anger and that he had positive family interactions. In light of these symptoms, the examiner indicated that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. In April 2014, the Veteran underwent another VA examination to assess the severity of his psychiatric disorder. The Veteran reported that he had periods of isolation when he was stressed but enjoyed going to the gym with his son. The examiner diagnosed the Veteran with other specified trauma and stressor related disorder. The Veteran demonstrated symptoms of anxiety, chronic sleep impairment, and disturbance of motivation and mood. Based on these symptoms the examiner determined that the Veteran had 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. In January 2016, the Veteran most recently underwent a VA examination to determine the severity of his psychiatric disorder. The Veteran reported he had been in a good marriage for 31 years and he remained emotionally connected to his family and socially connected to friends. The Veteran also reported symptoms of anxiety, chronic sleep impairment, and disturbance of motivation and mood. The examiner diagnosed the Veteran with other specified trauma and stressor related disorder and found that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. From May 29, 2012, private treatment records documented unremarkable mental status examinations, with a cooperative attitude; normal concentration; orientation to person, place, and time; mood euthymic, and a thought process that was linear and goal directed. The Veteran had symptoms of nightmares, flashbacks, anger, depression, short term memory loss, mood swings, anxiety, and racing/jumping thoughts. However, he no longer had suicidal thoughts or panic attacks and hallucinations were rare. See Goldsboro Psychiatric Clinic, PA treatment records. Based on the foregoing evidence, the Board finds that for the period prior to May 29, 2012, the Veteran’s psychiatric symptomatology more closely approximated the criteria for a 70 percent rating. In pertinent part, for this period, the evidence demonstrated symptomatology reflective of 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 thoughts, constant anxiety, severely compromised ability to sustain social relationships, and inability to sustain work relationships. Accordingly, in resolving all reasonable doubt in the Veteran’s favor, the Board finds that his symptomatology more closely approximates the criteria for a 70 percent rating prior to May 29, 2012. The Board acknowledges that prior May 29, 2012 the Veteran’s private examiner indicated that the Veteran was permanently and totally disabled and unemployable. While the Board does not deny that the Veteran’s psychiatric disorder severely impacted his ability to work, the evidence does not show that the Veteran suffered from symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to a 100 percent disability rating. Mauerhan, 16 Vet. App. at 443. Notably, a 100 percent rating requires total social impairment in addition to total occupational impairment. However, despite the Veteran’s symptoms of occasional hallucinations, isolation, and problems with social relationships, he was married for 27 years (at that time) and able to socialize with other veterans. Accordingly, the initial 70 percent rating assigned for this period contemplates an inability to establish and maintain effective relationships, which is a more appropriate description of the Veteran’s social impairment than the term total social impairment. As such, a higher initial 100 percent rating is not warranted for the period prior to May 29, 2012. For the period from May 29, 2012, the Veteran’s displayed some symptoms associated with a higher rating (such as hallucinations). Nonetheless, the Board has determined that the severity of the documented symptoms do not equate to occupational and social impairment with deficiencies in most areas (i.e., a 70 percent rating). In pertinent part, private treatment records and VA examinations dated from May 29, 2012 indicate that the Veteran symptoms were, at most, productive of occupational and social impairment with reduced reliability and productivity. The Board notes that while the Veteran consistently exhibited psychiatric symptoms of anxiety, sleep impairment, depression, anger/irritability, nightmares, flashbacks, and disturbance of motivation and mood, his symptoms improved. He no longer had suicidal ideation and his mental status examinations were unremarkable. Moreover, the Veteran also reported that he had positive family interactions, enjoyed going to the gym with his son, and was socially connected with friends. As such, the Board finds that from May 29, 2012, the Veteran’s symptomatology does not meet the criteria for the assignment of a higher initial 70 percent rating. REASONS FOR REMAND 1. Entitlement to service connection for a left foot disorder is remanded. In May 2016 the Veteran underwent a VA foot and ankle examination to determine the etiology of his left foot disorders. The examiner diagnosed the Veteran with bilateral flat foot, bilateral plantar fasciitis, bilateral osteoarthritis, and left ankle achilles tendonitis. With regard to each left foot disorder, the examiner opined that the disorders were less likely than not proximately due to or the result of the Veteran’s service-connected condition (right foot disorder). See May 2016 VA Medical Opinions. The examiner’s stated rationale was that there are “no in-service medical records indicating foot condition which can account for current exam findings [and] [n]o c/o right foot pain documented on separation exams.” Id. In spite of this explanation, the Board finds the examiner’s opinions to be insufficient as they do not also address whether the Veteran’s left foot disorders were at least as likely as not aggravated by his service-connected right foot disorder. The Board also notes that the Veteran’s service treatment records document bilateral ankle problems after a hard landing. See June 1989 Service Treatment Records. However, no direct service connection opinion was provided regarding the Veteran’s left foot disorder. Accordingly, remand is warranted for a new VA examination and medical opinion consistent with the directives herein. 2. Entitlement to a TDIU is remanded. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran’s service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran’s service connection claim remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is, thus, also required. As the Veteran has not been afforded written notice of the information necessary to substantiate a TDIU claim, the Veteran should be provided appropriate notice of what is required to substantiate a claim for TDIU. The matter is REMANDED for the following actions: 1. Provide the Veteran with notice of the criteria for a TDIU. Specifically, request that the Veteran complete and submit VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 2. Make arrangements to obtain the Veteran’s outstanding VA and private treatment records, if any. All reasonable attempts to obtain such records should be made and documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 3. Following the records development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s left foot disorders. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) The examiner should indicate all current diagnoses for the Veteran’s left foot. a) The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed left foot disorder had its onset in or is otherwise related to his active duty service, to include the Veteran’s June 1989 hard landing and trauma to both ankles. b) The examiner should also opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s left foot disorder was caused or aggravated by his service-connected right foot disorder. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as any increase in disability. In rendering the opinions above, the examiner is advised that the Veteran is competent to report his symptoms/ history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 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. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel