Citation Nr: 18146987 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-35 478A DATE: November 5, 2018 ORDER A 70 percent rating for posttraumatic stress disorder (PTSD) with history of insomnia is granted. REMANDED The issue of entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. FINDING OF FACT The service-connected PTSD with history of insomnia is shown to approximate occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for the assignment of a 70 percent rating for PTSD with history of insomnia have been approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from November 2007 to November 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the RO. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. 1. Entitlement to a rating in excess of 30 percent for PTSD with history of insomnia Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12Vet. App 119 (1999). 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. See 38 C.F.R. § 4.7. The rating for the Veteran’s PTSD has been assigned pursuant to Diagnostic Code (DC) 9411 with reference to a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. Under the formula, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is 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 70 percent rating is assigned 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 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 is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; 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; and memory loss for names of closes relatives, own occupation, or own name. The examiner’s assessment of the severity of a condition is not dispositive of the evaluation issue; rather, the examiner’s assessment must be considered considering the actual symptoms of the Veteran’s disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). A February 2013 VA psychiatry note documents the Veteran’s complaint of irritability and that he was easily angered. He denied feelings of depression. He reported that he was doing better and his sleep impairment was improving. He denied suicidal or homicidal ideation. On mental status examination, the Veteran appeared his stated age, demonstrated adequate hygiene and was casually dressed. He was cooperative and establishing rapport was easy. Cognitive functioning was grossly intact and he maintained fair eye contact. There was no psychomotor retardation or agitation. He displayed a full range of mood and affect and he had normal speech. His thought processes were logical and his thought content was devoid of delusional thinking. He denied experiencing perceptual disturbances. Insight and judgment were fair. The September 2013 Report of VA examination reflects the examiner’s assessment that the Veteran’s PTSD was productive of 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. The Veteran was single but lived with his girlfriend of two years. He worked and went to school full-time. He reported that he rode his motorcycle for stress relief. He stated that his girlfriend and parents complained of his behavior, namely that he was irritable, angry, detached from others, isolative, anxious, restless and avoided crowds and loud places. He reported that he experienced episodic panic attacks that occurred spontaneously once or twice per week. He had been employed for two years at his current job doing electrical work. He complained of some relationship difficulties dealing with supervisors. He was a college student working toward his associate’s degree. He previously self-medicated and used alcohol and cannabis to treat his PTSD symptoms. He denied current alcohol and cannabis abuse but did report that he occasionally drinks one or two beers. He had not used cannabis for months. He reported that his current prescribed medication was helpful in treatment of his symptoms. Documented symptoms of his PTSD included anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment and difficulty adapting to stressful circumstances, including work or a worklike setting. The March 2018 private psychological evaluation report documents that after service the Veteran was hired by his brother-in-law who owned an electrical company. He performed in various capacities doing generalized maintenance duties, maintaining vehicle logs and expediting building permits for electrical jobs. He also took college courses in information technology and network engineering. He earned a certificate in air conditioning maintenance and repair. He reported that he was fortunate to work for his brother-in-law because he was tolerant of the Veteran’s psychiatric impairments during periods of decompensation that have affected work productivity. At times he was quite irritable and small things would anger him. As an example, he once became angry because there was a stack of mail on a desk in the office and he slammed the stack of mail, knocking it to the floor. He did not really know why the stack of mail made him so angry. Another time, he “flipped out” when attempting to get a building permit at the building department because he had to wait. He admitted that since his military discharge, he could be quite intolerant of people and he had difficulty when he was in a crowd of people. He estimated that approximately three to five times per week he could not go to an assigned job site because of his fear that there would be many people there. He had caused significant problems for his supervisor because work assignments have had to be redone when he has been unable to go to a job site. He has had panic attacks when confronted with a group of people that led him to avoid the group. His constant anxiety and frequent panic attacks have a detrimental impact on his ability to work. He had conflict with supervisors which he attributed to his low frustration tolerance, constant anxiety, intolerance of other people and irritability. His work performance had also been negatively impacted by the difficulty he had maintaining his focus on activities. He often had intrusive memories of his military trauma that distracted him from his work. At times his mind wandered to his military experience that could be triggered by numerous stimuli. The psychologist stated that his PTSD symptoms significantly impaired his ability to complete jobs within the expected amount of time it should take to finish. The Veteran was married and had no children. The Veteran wore clean, seasonably appropriate clothing. He spoke in a clear voice, using coherent, grammatically correct sentences. His affect appeared constricted. His intellectual functioning, based on his education, vocabulary and general fund of information, appeared to be within the high average range. He provided information consistent with information provided in his claims file and there was no indication of malingering. The psychologist concluded that results of objective testing indicated that the Veteran was experiencing a high level of impairment in his functioning due to his PTSD symptoms. The Veteran’s psychiatric impairment had a significant impact on his ability to work effectively. The psychologist noted that the Veteran had numerous incidents during which he became quite angry for little or no reason. The Veteran had diminished stress tolerance and has been less capable of effectively coping with stress since his military service. His low stress tolerance has been manifested in conflicts with supervisors, vendors, family and others and outbursts have affected his work performance. The Veteran reported that he had approximately three to four panic attacks per week. His panic symptoms were particularly troublesome when they occur while he was working because they would render him essentially dysfunctional. The psychologist noted that in the September 2013 VA examination the examiner determined that the Veteran demonstrated 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. However, the psychologist explained that in the September 2013 VA examination report, the examiner documented that the Veteran met all criteria, as well as every symptom for each criterion, for a diagnosis of PTSD which would ordinarily be considered a more severe level of impairment. Additionally, in the September 2013 VA examination report, the examiner documented that the Veteran reported some relationship difficulties dealing with supervisions and indicated that the Veteran was experiencing anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment and difficulty in adapting to stressful circumstances, including work or a work like setting. Further, the examiner noted that the Veteran’s parents complained of his behavior that included irritability anger, detachment from others, isolation, anxiousness, worry and restlessness. The examiner noted that the Veteran avoided crowds and loud places and reported episodic panic attacks that occurred spontaneously. The psychologist concluded that the depiction of the severity of his psychiatric symptoms in the September 2013 examination report would imply a more severe level of social and occupational impairment than mild or transient symptoms. The psychologist found that the Veteran met the criteria for a severe level of PTSD. Further, the intensity and frequency of his panic attacks also indicate that he experienced significant impairing anxiety. The Veteran had difficulty adapting to stressful situation that occur at work and in the community and had an inability to establish and maintain relationships, evidenced by his family’s complaints about his behavior and interpersonal conflicts he has had in the community and at work. The psychologist concluded that the Veteran had occupational and social impairment with deficiencies in all areas of functioning, including, work, family relationships and mood, due to nearly continuous symptoms of PTSD and panic attacks, impaired impulse control, irritability, poor concentration, social withdrawal and explosive angry outbursts with little provocation. In the corresponding March 2018 PTSD disability benefits questionnaire (DBQ), the psychologist documented the symptoms attributable to the Veteran’s PTSD including depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, impairment of short or long term memory, flattened affect, impaired judgment, disturbance 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, impaired impulse control such as unprovoked irritability with periods of violence and intermittent inability to perform activities of daily living. The law does not require that an exhaustive list of symptoms be met to grant an increased rating for the psychiatric disorder. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, the Veteran has demonstrated manifestations and effects such as anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; difficulty adapting to stressful circumstances, including work or a worklike setting; depressed mood; panic attacks more than once a week; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; mild memory loss; impairment of short or long term memory; flattened affect; impaired judgment; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; inability to establish and maintain effective relationships; and, impaired impulse control such as unprovoked irritability with periods of violence – supportive of a 70 percent rating. When viewed in a light most favorable to the Veteran, he has severe difficulty in functional areas due to the frequency, severity and duration of his symptoms. Thus, a 70 percent rating is assigned for the entire period of the appeal. As the U.S. Court of Appeals for the Federal Circuit explained, evaluation under § 4.130 is “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). The symptoms listed in DC 9411 are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” In the context of determining whether a higher 100 percent disability evaluation is warranted, the DC requires not only the presence of certain symptoms but also that those symptoms have caused total occupational and social impairment —i.e., “the regulation... requires an ultimate factual conclusion as to the veteran’s level of impairment …” Vazquez-Claudio, 713 F.3d at 117–18; see 38 C.F.R. § 4.130, DC 9411. At no time has the Veteran demonstrated gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, disorientation or persistent danger of hurting others. While the psychologist has indicated that the Veteran has intermittent inability to perform activities of daily living, there has never been a demonstration of any dysfunction with maintenance of minimal personal hygiene. For these reasons, a rating more than 70 percent for the PTSD is not warranted. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. 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). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. Remand is required to afford the Veteran VA examination to determine the current severity of the service-connected left knee disability. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA shoulder examination to assist in determining the nature and severity of the left knee disability. The entire claims file should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation, including any pertinent diagnostic imaging and radiography, should be accomplished and all clinical findings should be reported in detail. Specifically, the examiner is requested to test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not feasible, he or she should provide a detailed explanation for why testing could not be accomplished. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific limitation(s) of motion, if any, accompanied by pain. To the extent possible, the examiner should assess the degree of severity of any pain. Tests of joint movement against varying resistance should be performed. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If this testing is not feasible, the examiner should provide a detailed explanation for why such could not be accomplished. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes 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 should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this testing is not feasible, the examiner should provide a detailed explanation for why such could not be accomplished. As indicated above, the examiner should review the record in conjunction with commenting on the severity of the Veteran’s left knee disability; however, his or her attention is drawn to the following: *VA examination report of September 2013 reflects the Veteran’s complaint of daily left knee pain. His left knee pain was aggravated by prolonged standing, walking, kneeling, squatting and climbing stairs. He reported that he had flare-ups of left knee pain approximately once per week. During a flare-up of left knee pain, he estimated that he lost about 20 degrees of knee flexion due to pain, incoordination, fatigue or weakness. He had full extension of the left knee and flexion limited to 130 degrees. On repetitive use testing, he had no additional limitation in range of motion of the left knee. There was no evidence of left knee instability or history of recurrent patellar subluxation/dislocation. The Veteran had no evidence of a meniscal condition. (Continued on the next page)   THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Jackson, Counsel