Citation Nr: 18145551 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-41 981 DATE: October 29, 2018 ORDER An initial 70 percent rating for posttraumatic stress disorder (PTSD) with alcohol dependence prior to November 17, 2014, is granted, subject to the laws and regulations governing the payment of monetary benefits. A rating in excess of 70 percent for PTSD with alcohol dependence is denied. Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) of the left foot is denied. Entitlement to a rating in excess of 10 percent for DJD of the right foot is denied. REMANDED Entitlement to a rating in excess of 10 percent for traumatic arthritis of the thoracolumbar spine is remanded. Entitlement to an initial rating in excess of 20 percent left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for traumatic arthritis of the left hip is remanded. FINDINGS OF FACT 1. Prior to November 17, 2014, the evidence is at least evenly balanced as to whether the symptoms and overall impairment caused by the Veteran’s PTSD have more nearly approximated occupational and social impairment with deficiencies in most areas, but it has not more nearly approximated total occupational and social impairment. 2. For the entirety of the period on appeal, the weight of the evidence is against a finding that the symptoms and overall impairment caused by the Veteran’s PTSD have more nearly approximated total occupational and social impairment. 3. The weight of the evidence is against a finding that the Veteran’s DJD of the left foot most nearly approximates moderately severe disability. 4. The weight of the evidence is against a finding that the Veteran’s DJD of the right foot most nearly approximates moderately severe disability. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial rating of 70 percent, but no higher, for PTSD with alcohol dependence, prior to November 17, 2014, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating in excess of 70 percent for PTSD with alcohol dependence have not been met for any portion of the rating period on appeal. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, DC 9411. 3. The criteria for a rating in excess of 10 percent for DJD of the left foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5010-5284. 4. The criteria for a rating in excess of 10 percent for DJD of the right foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5010-5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to November 1986 and from July 2004 to April 2005. A. Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which allows for ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. PTSD The Veteran is service-connected for PTSD, rated under 38 C.F.R. § 4.130, DC 9411, according to the General Rating Formula for Mental Disorders. The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. §§ 4.125, 4.130. (The Board recognizes that the Veterans Benefits Administration now utilizes DSM-5; however, the VA Secretary has indicated that the change does not apply to claims pending before the Board, such as this one. 79 Fed. Reg. 45094 (Aug. 4, 2014).) Under the General Rating Formula, a 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted for 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 ability 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. The list of symptoms under the rating criteria are intended to serve as examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court’s interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In this appeal, the Veteran is challenging the initially assigned disability rating. The appeal has been in continuous appellate status since the original assignment of service connection. The evidence to be considered includes all evidence proffered in support of the original claim. Fenderson v. West, 12 Vet. App. 119 (1999). Here, the Veteran’s PTSD was initially rated 50 percent disabling until November 17, 2014, 70 percent disabling until April 5, 2016, 100 percent disabling under 38 C.F.R. § 4.29 until June 1, 2016, and 70 percent disabling thereafter. The Veteran was afforded a VA examination in January 2011. There, he reported irritability and increased startled response. The Veteran explained that he has trouble sleeping and will have flashbacks of his active service in Kosovo. He reported not interacting with friends anymore. He explained that his mood would swing frequently and he was afraid that he would have outbursts at family members. The Veteran was working but he had difficulty at work due to irritability. He felt that he would be better off isolated from everyone. He reported being married for 10 years. The Veteran was afforded another VA examination in June 2012. There, PTSD was described as chronic and severe. The examiner described PTSD as productive of occupational and social impairment with reduced reliability and productivity. The Veteran reported having four children and being married twice. The Veteran reported anger on the job and felt as though he would become violent towards co-workers. The Veteran reported past suicidal thoughts. Symptoms noted were: depressed mood, anxiety, chronic sleep impairment, mild memory loss, impaired judgment, disturbance of motivation and mood, difficulty in establishing effective work and social relationships, and suicidal ideation. The Veteran was afforded a VA examination in August 2016. The VA examiner described PTSD as productive of occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. The Veteran reported being married for 15 years, but noted conflicts within his family. The Veteran stated that he has worked for six years in maintenance. He stated that he often has conflicts at work due to his anger and was close to being fired. Daily use of alcohol was noted. Symptoms noted were: depressed mood, anxiety, suspiciousness, flattened affect, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing relationships, suicidal ideation, and difficulty in adapting to stressful circumstances. The Veteran submitted a disability benefits questionnaire (DBQ) dated March 2018. The authoring psychologist noted that PTSD was productive of total social and occupational impairment. The Veteran reported working for the past seven years in the sewage industry. The Veteran reported increasing his alcohol consumption to deal with his PTSD symptoms. Symptoms noted were: depressed mood, anxiety, suspiciousness, near-continuous depression, chronic sleep impairment, impaired short and long-term memory, flattened affect, circumstantial speech, impaired judgment, gross impairment of thought processes, impaired abstract thinking, disturbances of motivation and mood, inability to establish effective relationships, suicidal ideations, obsessional rituals, impaired impulse control, grossly inappropriate behavior, neglect or personal appearance, and intermittent inability to perform activities of daily living. VA and private psychiatric treatment records from throughout the period on appeal are of record. Notably, the symptomatology described in those treatment records is congruent with the symptomatology described in the VA examination reports, described above. The Board notes that the Veteran was hospitalized for psychiatric problems and a 100 percent rating (the propriety of which is not on appeal) was granted pursuant to under 38 C.F.R. § 4.29 from April 5, 2016 until June 1, 2016. The evidence as described in pertinent part above reflects that the Veteran’s symptomatology most closely approximated the criteria for a 70 percent rating during the initial period of the appeal, from September 30, 2011 until November 17, 2014. Indeed, treatment records and examination reports contain evidence of symptoms and overall impairment that correspond to both a 50 and a 70 percent rating. The competent and credible evidence of record shows that the Veteran was shown to experience occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, thinking, and mood. He has exhibited symptoms of depression, anxiety, suicidal ideation, thoughts about death, and chronic sleep impairment. This indicates serious symptoms related to the Veteran’s PTSD. Thus, the criteria for a 70 percent rating are most closely approximated for the initial period prior to November 17, 2014. A rating in excess of 70 percent at any point, however, is not warranted. The Board notes that the March 2018 DBQ report includes several of the symptoms listed under the 100 percent rating, to include gross impairment of thought processes, intermittent inability to perform activities of daily living, and neglect of personal appearance. Further, the March 2018 DBQ report described the Veteran’s PTSD as productive of total social and occupational impairment—as required for a 100 percent rating for PTSD. However, the record, including the March 2018 DBQ, indicates that the Veteran has been employed throughout the period on appeal. Indeed, the record reflects that the Veteran has maintained employment in the sewage industry. While the Veteran has experienced some conflicts at work, he has continued to maintain that employment without issue. Thus, the March 2018 DBQ author’s conclusion that PTSD is productive of total occupational impairment is inconsistent with the facts of record and, indeed, the facts before the author of the March 2018 DBQ author as he acknowledged that the Veteran was employed. Simply, the March 2018 DBQ is internally contradictory. On one hand, the Veteran has been employed, apparently full time, in the sewage industry for the past seven years, but on the other he experiences total occupational impairment from PTSD. Given that internal inconsistency, the Board concludes that the characterization of the Veteran’s PTSD is inaccurate and of no probative value. As the Veteran has maintained gainful employment, and has not contended otherwise or claimed total disability based on individual unemployability, the Board concludes that the Veteran’s PTSD has not more closely approximate total social and occupational impairment at any point during the appeal period. Even socially, while the Veteran’s symptoms have been highly debilitating, he has remained married and presumably has at least succeeded in minimal contact with those around him at work, and thus even total social impairment is not indicated here. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Resolving reasonable doubt in the Veteran’s favor, the Veteran’s disability picture, to include the severity, frequency, and duration of his symptoms, and the resulting impairment of social and occupational functioning, is more consistent with an initial 70 percent disability evaluation prior to November 17, 2014. However, the preponderance of the evidence is against a finding that a rating in excess of 70 percent, during any period, is warranted, and the benefit of the doubt doctrine is therefore not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. C. Feet The Veteran’s bilateral foot disability has been assigned separate 10 percent ratings under Diagnostic Codes 5010-5284. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. In this case, DC 5010 evaluates traumatic arthritis, and DC 5284 evaluates “other foot disability.” Under DC 5010, traumatic arthritis is rated as degenerative arthritis under 38 C.F.R. § 4.71a, DC 5003. 38 C.F.R. § 4.71a, DCs 5003, 5010. Degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the joint involved, with a 10 percent evaluation assigned for limited motion that is noncompensable under the appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion, but in the absence of limitation of motion a compensable rating for degenerative arthritis can be assigned when there is X-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups (10 percent), or X-ray evidence of the same with occasional incapacitating exacerbations (20 percent). Id. DC 5284 pertains to other injuries of the foot. Moderate disability warrants a 10 percent rating, moderately severe disability warrants a 20 percent rating, and severe disability warrants a 30 percent rating. Actual loss of the foot warrants a 40 percent rating. 38 C.F.R. § 4.71a, DC 5284. DC 5010, applicable to traumatic arthritis, is evaluated as degenerative arthritis, based on limitation of motion of the specific joint involved. 38 C.F.R. § 4.20. The terms “mild,” “slight,” “moderate,” and “severe” are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. The Veteran was afforded a VA examination in September 2010. There, he reported constant bilateral heel pain. He did not use inserts or take medication. He denied any flare-ups. There was no evidence that standing or walking was impacted. There were no corns, calluses, or edema. There was no painful or restricted motion, abnormal weightbearing, weakness, or instability. X-rays showed osteoarthritis bilaterally. The Veteran was afforded a VA examination in June 2014. There, he reported constant bilateral foot pain. With respect to bilateral DJD, the examiner described the Veteran’s symptoms as mild. The bilateral foot disability did not impact weightbearing. The use of orthotics was denied. The Veteran reported pain and impaired walking and standing, as well as fatigue. VA treatment records reflect similar complaints of fatigue, pain and some impairment of walking and standing after prolonged use. The Board concludes that the criteria for 20 percent ratings have not been more closely approximated. To that end, under DC 5284, the foot disability must be moderately severe to warrant the next higher rating. The primary complaint related to the DJD of the bilateral feet is pain at the heel. The evidence does not reflect that the pain is severe or even moderately severe. Moreover, the Veteran has complained of impaired walking and standing, as well as fatigue, due to DJD. However, despite those complaints, the June 2014 VA examiner determined that the Veteran’s bilateral DJD only resulted in mild, not moderately severe, symptomatology. As the evidence reflects that the Veteran only experiences some pain at the heel, impaired standing and walking with use and fatigue, the Board concludes that the Veteran’s DJD symptomatology does not more closely approximate that of moderately severe symptoms. See 38 C.F.R. § 4.6. The evidence of record reflects that the Veteran’s DJD more closely approximates moderate symptomatology, congruent with the assigned 10 percent ratings under DC 5010-5284. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette, 28 Vet. App. at 369-70. For the foregoing reasons, the preponderance of the evidence reflects that ratings higher than 10 percent are not warranted for DJD of the bilateral feet, and the benefit of the doubt doctrine is therefore not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Therefore, entitlement to higher ratings for the Veteran’s DJD of the bilateral feet are not warranted. REASONS FOR REMAND Regarding the claims for increased ratings for the low back disability and left hip disability, the Veteran was last afforded a VA examination pertaining to the low back in June 2012 and the left hip in September 2010. Subsequent to those examinations, the United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (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 non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court in Correia interpreted 38 C.F.R. § 4.59 to establish additional requirements that must be met prior to finding that a VA examination is adequate. A review of the claims file reveals that the previous VA examination reports include only active range of motion findings and do not include range of motion findings for passive range of motion. They also do not specify whether the results are weight-bearing or non-weight-bearing. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, new examinations are necessary to decide the low back and left hip claims. Regarding the claims for increased ratings for lower extremity radiculopathy, the examination of the low back will yield relevant evidence pertaining to the severity of the Veteran’s radiculopathy. Thus, given that the requested examinations will yield evidence relating to the claims for increased ratings for radiculopathy of the bilateral lower extremities, those are being remanded, as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected left hip disability. All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand, must be sent to the examiner for review. The examiner should report the ranges of left hip flexion and extension (in degrees) on both active motion and passive motion and in both weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also specifically answer the following question with respect to left hip flexion and extension: What is the extent of any additional limitation of left hip motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use? The examiner should report if there is ankylosis of the left hip and, if so, the angle at which the hip is held. The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his left hip disability. 2. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected low back disability. All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand, must be sent to the examiner for review. The examiner should report the ranges of left hip flexion and extension (in degrees) on both active motion and passive motion and in both weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also specifically answer the following question with respect to low back flexion and extension: What is the extent of any additional limitation of low back motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use? The examiner should report if there is ankylosis of the lumbar spine. With respect to neurological manifestations of low back disability, the examiner should assess the severity of already service-connected radiculopathy of the bilateral lower extremities. The examiner should also identify any additional chronic neurological manifestation(s) of the service-connected low back disability; and for each such identified additional manifestation, should indicate whether such manifestation constitutes a separately ratable disability and, if so, should provide an assessment of the severity of such disability. The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his low back disability. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel