Citation Nr: 18144923 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 14-21 380 DATE: October 25, 2018 ORDER Entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for a left hip condition, to include as secondary to a right hip condition is remanded. Entitlement to service connection for headaches, to include as secondary to the PTSD is remanded. Entitlement to an initial rating in excess of 70 percent for the PTSD is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s PTSD causes occupational and social impairment with deficiencies in most areas, but total occupational and social impairment has not been shown. CONCLUSION OF LAW The criteria for entitlement to an initial 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2002 to March 2006. The Board of Veterans’ Appeals (Board) will issue a partial grant of the claim of entitlement to an initial increased rating for PTSD. As this is only a partial grant, the claim of entitlement to an initial 100 percent rating for PTSD will remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The claim will be discussed in the REMAND portion of the decision below and is REMANDED to the AOJ. The Veteran testified before the undersigned Veterans Law Judge in September 2014. New evidence was added to the record after the issuance of the May 2014 statement of the case (SOC) regarding the Veteran’s headaches and left hip claims, and the June 2017 supplemental SOC (SSOC) regarding the Veteran’s PTSD claim. The agency of original jurisdiction (AOJ) did not issue SSOCs for either of the service connection claims for the left hip and headaches or the increased rating claim for PTSD to address the new evidence. To date, the Veteran has not waived AOJ reconsideration of new evidence. However, as the decision herein comprises a partial grant of the benefit sought for an increased initial rating for PTSD, and the AOJ will have an opportunity to review all of the new evidence on remand of the of all remaining issues; no prejudice results to the Veteran by the issuance of the decision herein. In a September 2017 rating decision, the Veteran was denied entitlement to a TDIU, and the Veteran submitted a notice of disagreement (NOD) to that decision in November 2017. Accordingly, Board finds that a TDIU is part of the Veteran’s claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 1. Entitlement to an initial rating in excess of 50 percent for PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Under the General Rating Formula for Mental Disorders a 50 percent rating is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks (more than once a week); difficulty in understanding complex commands; impairment of short- and long-term memory (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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating requires 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. Id. The 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. Id. In August 2010 VA treatment notes, the Veteran reported suicidal ideations and hallucinations. The Veteran was afforded a VA examination in September 2010. The Veteran reported intermittent fleeting suicidal thoughts. September 2010 VA treatment notes show the Veteran was positive for auditory hallucinations, and she reported they had become “clearer.” A December 2010 psychology report from Social Security Administration (SSA) records show complaints of an inability to remember key information on the job, avoidance of crowds, and suicidal ideations. In the SSA notes, the Veteran also reported needing her mother to remind her to perform normal hygiene such as brushing her teeth and bathing. February 2014 VA treatment notes recorded the Veteran experiencing forgetfulness, suicidal ideations, and social isolation. The Veteran also reported attempting suicide by attempting to overdose on medications one year prior to the February 2014 treatment note. During the September 2014 Board hearing, the Veteran reported symptoms of anger and irritability, sleep impairment, panic attacks, and current suicidal ideations. In April 2017, the Veteran was afforded another VA examination. The examiner summarized the Veteran’s level of occupational and social impairment as a mental condition formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. She reported fleeting non-specific suicidal thoughts, quickly becoming irritable and agitated, and avoidance of being in public. The examiner did not find the Veteran suicidal, obsessive, or compulsive. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. In a statement submitted in November 2017, the Veteran reported going days without being able to properly clean or feed herself, and she also reported memory lapses in the middle of completing task. The Veteran was afforded a VA examination in May 2018. The examiner found the Veteran’s symptoms showed occupational and social impairment with deficiencies in most areas. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideations, and persistent delusions or hallucinations. The Veteran reported hearing voices. Based on the medical and lay evidence, the Veteran’s PTSD warrants an initial 70 percent rating. The Veteran’s records showed multiple reports of suicidal ideations, and a suicide attempt approximately around February 2013. The Veteran also endorsed auditory hallucinations throughout the record, and reported symptoms which show neglect of personal appearance and hygiene. The Veteran reported frequent panic attacks, needing the help of her mother to function, and isolation type behavior which can be viewed as the inability to establish and maintain effective relationships. When weighing the totality of the evidence, and viewing it in a light most favorable to the Veteran; the Veteran’s symptoms most closely approximate a 70 percent disability rating. Accordingly, an initial 70 percent evaluation is warranted. Entitlement to an even higher rating, meaning an evaluation in excess of 70 percent for the PTSD, will be addressed below in the remand portion of this decision. REASONS FOR REMAND 1. Entitlement to service connection for a left hip condition, to include as secondary to a right hip condition is remanded. The Veteran contends her left hip condition is secondary to her service-connected right hip condition. The Veteran was afforded a VA examination in January 2014. The VA examiner failed to provide an adequate rationale, instead improperly relying solely on the absence of evidence in the Veteran’s service treatment records (STRs). See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The examination also failed to address secondary service connection as the Veteran is service-connected for right hip bursitis. Accordingly, an addendum opinion is necessary prior to adjudication of the Veteran’s claim. 38 C.F.R. § 3.159(c)(4). 2. Entitlement to service connection for headaches, to include as secondary to PTSD is remanded. The Veteran contends her headache condition is secondary to her service-connected PTSD. The Veteran was afforded a VA examination in January 2014. The VA examiner failed to provide an adequate rationale, instead improperly relying solely on the absence of evidence in the Veteran’s service treatment records (STRs). Forshey, supra. The examination also failed to address secondary service connection as the Veteran is service-connected for PTSD. Accordingly, an addendum opinion is necessary prior to adjudication of the Veteran’s claim. 3. Entitlement to a rating initial rating in excess of 70 percent for PTSD is remanded. In this case, no SSOC addressed the additional evidence, to include SSA records and the May 2018 VA examination, added to the evidence of record after the SSOC was issued in June 2017. Since the additional evidence in question is neither duplicative of other evidence nor irrelevant, and since an SSOC pertaining to that evidence was not issued, this evidence must be remanded to the AOJ. 4. Entitlement to service connection for a TBI is remanded In an April 2016 rating decision, the AOJ denied the Veteran entitlement to service connection for a TBI. In June 2016, the Veteran submitted a timely NOD for the issues denied in the April 2016 rating decision. The Veteran did not specify which issue she was appealing, and the AOJ asked for clarification in June 2016. In July 2016, the Veteran resubmitted a NOD. To date, the AOJ has yet to issue the Veteran a SOC, therefore, a remand is appropriate for the issue of entitlement to service connection for a TBI. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). This procedural error must be corrected on remand. 5. Entitlement to a TDIU is remanded. The Veteran submitted a TDIU claim and reported last working in March 2006 on the official TDIU application (VA Form 21-8940) submitted in August 2017. However, the Veteran reported last working in 2013 during an April 2017 VA examination. The Veteran’s SSA records also show the Veteran reporting work history after 2006 as she reported to VA. The Veteran needs to submit an accurate VA Form 8940 with all her occupational work history subsequent to separation from active duty. Finally, a decision on the issues remanded in the decision herein could significantly impact a decision on the issue of a TDIU, the issues are inextricably intertwined. The Board notes the December 2010 examination in the SSA record and the May 2018 VA examination mention the Veteran’s ambulation difficulties. The Veteran was using a can and needed assistance to walk in May 2018. Therefore, a remand of the claim for a TDIU is required. The matters are REMANDED for the following action: 1. Furnish the Veteran with a 38 C.F.R. § 3.159(b) notice letter and a VA Form 8940 as to the TDIU claim 2. Make efforts to obtain all outstanding medical records regarding the Veteran’s bilateral hip condition, headaches, PTSD, and TBI in accordance with the duties set forth in 38 C.F.R. § 3.159(c). 3. After all outstanding records have been associated with the claims file, forward the Veteran’s file to a qualified VA medical professional in order to obtain addendum opinions as to the current nature and etiology of the Veteran’s current left hip condition and headache condition. (Multiple opinions from different treatment providers, and possible new VA examinations, may be conducted if deemed necessary.) The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner(s). The examiner(s) is asked to address the following: (a.) Identify and diagnose any current (at any point during appeal period) left hip condition; (b.) For each diagnosed left hip condition, provide an opinion as to whether the condition at least as likely as not (a 50 percent or greater probability) had its onset during or is otherwise related to any event or injury during the Veteran’s active duty, or at least as likely as not was caused or aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected right hip condition; (c.) Provide an opinion as to the impact of any service-connected hip condition on the Veteran’s ability to secure and maintain gainful employment; (d.) Identify and diagnose any current (at any point during appeal period) headache condition; (e.) For each diagnosed headache condition, provide an opinion as to whether the condition at least as likely as not (a 50 percent or greater probability) had its onset during or is otherwise related to any event or injury during the Veteran’s active duty, or at least as likely as not was caused or aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected PTSD; (f.) IF the Veteran’s headache condition is found to be related to service or related to the Veteran’s service-connected PTSD, provide an opinion as to the impact of the headache condition on the Veteran’s ability to secure and maintain gainful employment. All opinions must be supported by a detailed rationale. The examiner(s) must address all relevant lay evidence, to include contentions presented by the Veteran during the September 2014 Board hearing. 4. Provide the Veteran a SSOC, containing a full description of her appeal rights and responsibilities, concerning the issue of entitlement to an initial rating in excess of 70 percent for PTSD. Allow an appropriate period of time for response. 5. Provide the Veteran a SOC, containing a full description of her appeal rights and responsibilities, concerning the issue of entitlement to service connection for a TBI. Allow an appropriate period of time for response. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel