Citation Nr: 18148158 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 09-12 573 DATE: November 6, 2018 ORDER Entitlement to a rating greater than 30 percent for posttraumatic stress disorder (PTSD) for the period between December 14, 2010 and February 28, 2012 is denied. REMANDED In addition, the claims for entitlement to service connection for the following issues are remanded: a left ankle condition, bronchitis (also claimed as a lung condition), and traumatic brain injury. Further, the following issues are remanded: the evaluation of chronic low back muscle strain with degenerative arthritis of the spine, currently evaluated as 10 percent disabling; the evaluation of right knee osteoarthritis, currently evaluated as 10 percent disabling; the evaluation of right ankle degenerative joint disease, currently evaluated as 10 percent disabling; and the evaluation of degenerative joint disease, left knee status post meniscus repair surgery, currently evaluated as 10 percent disabling. Also, the issue of entitlement to a total disability rating based upon unemployability (TDIU) for the period between December 14, 2010 and March 16, 2012 is remanded. REFERRED ISSUES In addition, several issues are referred to the agency of original jurisdiction for further review. See the underlined text in the “Procedural History” section below. FINDING OF FACT For the period between December 14, 2010 and February 28, 2012, the Veteran presented no evidence to dispute the 30 percent rating in effect at that time. CONCLUSION OF LAW For the period between December 14, 2010 and February 28, 2012, the criteria for a rating greater than 30 percent are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from February 2003 to February 2006. PROCEDURAL HISTORY In one way or another, the Veteran has had a claim pending since December 14, 2010. In this regard, the Board notes that prior to March 24, 2015, the Board accepted informal claims or claims that were not on or in the proper form/format. Between December 14, 2010 and March 24, 2015, the Veteran filed applications for claims eight times. However, only once in that time span did the Veteran file anything other than an application for his claims: an appeal to the Board (form 9), filed February 28, 2012. Therefore, in considering the Veteran’s pattern of filing, the Board notes that aside from the appeal filed February 28, 2012, each other application was just that: an application and not a notice of disagreement or an appeal to the Board. For the purposes of clarity, the Board notes the following issues that have not been finally resolved and the status of each claim: • Entitlement to an increased rating for PTSD: initial application December 14, 2010. The Board notes that during the course of its appeal, the Veteran’s PTSD rating was increased, then reduced, and then increased again. In March 2013, his rating was increased to 50 percent, effective February 28, 2012, the date the AOJ found he filed his appeal to the Board. In March 2015, the AOJ proposed to reduce the Veteran’s PTSD to 30 percent and discontinue his TDIU. In his notice of disagreement dated June 2015, the Veteran asserted that he met the symptoms for a 50 percent rating and should continue to receive a 70 percent total rating and receive a TDIU. After additional development, to include an informal conference, the Veteran’s rating for PTSD was returned to 50 percent February 28, 2012, increased to 70 percent effective July 8, 2015, and his TDIU was reinstated back to March 2012. Given that the Veteran did not request a rating greater than 50 percent for his PTSD, the 50 percent rating since February 28, 2012 represents a full grant of benefits for that period of time. However, considering the Veteran’s application has been pending since December 14, 2010, entitlement to a rating greater than 30 percent for the period between December 14, 2010 and February 28, 2012 is addressed herein. Entitlement to a TDIU for that period is addressed in the remand section below. • Entitlement to an increased rating for chronic low back muscle strain with degenerative arthritis of the spine; • Entitlement to an increased rating for right knee osteoarthritis; • Entitlement to an increased rating for right ankle degenerative joint disease; • Entitlement to an increased rating for degenerative joint disease, left knee status post meniscus repair surgery. Similar to the PTSD claim, the Veteran initially filed these claims December 14, 2010 and then filed a notice of disagreement on February 28, 2012. Several rating decisions followed (March 2013, March 2015, and October 2015). In June 2016, the AOJ noted that the Veteran had filed a notice of disagreement and directed that a statement of the case be issued for all “unresolved notices of disagreement.” Thereafter, a SOC was issued in August 2016. However, the Veteran filed a timely notice of disagreement of the October 2015 rating decision in October 2016 (one year from the date the rating decision was mailed). No statement of the case was issued in response to this notice of disagreement. Given this, a remand is required and is addressed further in the remand section below. • Whether new and material evidence has been received to reopen a claim of service connection for a left ankle condition; • Whether new and material evidence has been received to reopen a claim of service connection for bronchitis; • Whether new and material evidence has been received to reopen a claim of service connection for a TBI. Unlike the increased ratings claims above, these three issues had previous rating decisions for which the Veteran did not file a notice of a disagreement; thus, they became final. The most recent application for these three claims was May 22, 2015. A rating decision dated October 2015 denied these claims. The Veteran timely filed a Notice of Disagreement in October 2016; however, no statement of the case was issued in response. Given this, a remand is required and is addressed further in the remand section below. • Whether new and material evidence has been received to reopen a claim of service connection for a neck/upper back condition; • Whether new and material evidence has been received to reopen a claim of service connection for headaches; • Whether new and material evidence has been received to reopen a claim of service connection for obstructive sleep apnea; • Whether new and material evidence has been received to reopen a claim of service connection for hypertension; • Entitlement to service connection for a penile condition; • Entitlement to service connection for joint pains (38 U.S.C. § 1151) claim. The most recent application for these claims was on July 28, 2014. They have not been considered by any rating decision since their most recent applications. Therefore, the AOJ is directed to develop and adjudicate these claims, to include the issuance of a rating decision. Further, in March 2012, the Veteran’s representative filed a statement contending that the Veteran should be entitled to an earlier effective date than May 18, 2008, for the date of service connection for PTSD. This is a free standing earlier effective date claim and is referred to the AOJ so that a rating action can be issued on the timeliness of the notice of disagreement for this claim. Finally, the Board notes that at various times since the Veteran’s application in December 2014, the Veteran has filed for service connection for the following, which he claims are secondary to PTSD: depression, bipolar, anxiety, sleep difficulties, and memory troubles. The Board finds that these are symptoms of the Veteran’s PTSD, not separate claims, and have been considered along with his PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). INCREASED RATINGS CLAIMS 1. Entitlement to a rating greater than 30 percent for PTSD for the period between December 14, 2010 and February 28, 2012. The Veteran generally contends that he is entitled to a higher rating for his PTSD. During this period, he was rated at 30 percent disabling. 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. When a question arises as to which of two ratings applies under a particular DC, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Consideration of the appropriateness of “staged ratings” (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The criteria for evaluating PTSD are found in the General Rating Formula for Mental Disorders, under 38 C.F.R. § 4.130, DC 9411 (2017). Under the general rating formula, a 30 percent rating requires occupational and social impairment with occasional decreases 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 evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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. A 100 percent evaluation 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. The “such symptoms as” language of the DCs for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. While each of the examples need not be proven in any one case, the particular symptoms must be analyzed in light of the given examples. Put another way, the severity represented by those examples may not be ignored. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a) (2014). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). After a review of the record, the Board finds the Veteran has presented no evidence of his functioning for the period between December 14, 2010 and February 28, 2012. The Veteran was scheduled for a VA examination in connection with his December 2010 application but he did not report to the examination. Further, the record is devoid of evidence related to his psychiatric functioning for the period between December 14, 2010 and February 28, 2012. The closest record is a VA examination from February 2013; however, the Board declines to find that the symptomology the Veteran experienced during that examination (and for which he was later awarded a 50 percent rating) existed between for the period between December 14, 2010 and February 28, 2012. The record contains undated letters from friends that are presented with letters from 2013 forward. Thus, again, the Board declines to find that the evidence is probative for the period at issue. After a thorough review of the record, the Board concludes that a 30 percent evaluation is warranted for the Veteran’s service-connected PTSD for the period between December 14, 2010 and February 28, 2012. 38 C.F.R. § 4.130, DC 9411. The Veteran failed to produce evidence of his functioning during the period. Accordingly, the doctrine of reasonable doubt is not for application, and therefore, a rating in excess of 30 percent for the Veteran’s service-connected PTSD disorder is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REMANDED ISSUES 1. Entitlement to an increased rating for chronic low back muscle strain with degenerative arthritis of the spine is remanded; 2. Entitlement to an increased rating for right knee osteoarthritis is remanded; 3. Entitlement to an increased rating for right ankle degenerative joint disease is remanded; 4. Entitlement to an increased rating for degenerative joint disease, left knee status post meniscus repair surgery, is remanded; 5. Whether new and material evidence has been received to reopen a claim of service connection for a left ankle condition is remanded; 6. Whether new and material evidence has been received to reopen a claim of service connection for bronchitis is remanded; 7. Whether new and material evidence has been received to reopen a claim of service connection for a TBI is remanded. As noted above, no statement of the case has been issued for the notice of disagreement received in October 2016. The United States Court of Appeals for Veterans Claims has held that the filing of a notice of disagreement initiates the appeal process, and that the failure of the RO to issue a statement of the case is a procedural defect requiring a remand. See Manlicon v. West, 12 Vet. App. 238 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995). Therefore, the above issues must be remanded by the Board to allow the AOJ to issue a statement of the case on these claims. 8. Entitlement to a TDIU prior to March 16, 2012 remanded. A TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 456 (2009) (holding that a claim for a TDIU is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record). The Veteran claims he is entitled to TDIU, asserting his disabilities make him unemployable. See February 2012, Appeal to the Board. Given that the complete evaluation of the Veteran’s low back, right ankle, and bilateral knee conditions are needed to determine his eligibility for a TDIU, those matters are inextricably intertwined with the TDIU issue and a remand is necessary. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). The matters are REMANDED for the following action: 1. Issue a statement of the case addressing entitlement to service connection for a left ankle condition, bronchitis (also claimed as a lung condition), and TBI. Further, issue a statement of the case addressing the following issues: the evaluation of chronic low back muscle strain with degenerative arthritis of the spine currently evaluated as 10 percent disabling; the evaluation of right knee osteoarthritis currently evaluated as 10 percent disabling; the evaluation of right ankle degenerative joint disease currently evaluated as 10 percent disabling; and the evaluation of degenerative joint disease, left knee status post meniscus repair surgery, currently evaluated as 10 percent disabling. The Veteran must be advised of the requirements to perfect an appeal with respect to these new issues. 2. Adjudicate the issue of entitlement to a TDIU for the period between December 14, 2010 and March 16, 2012. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. M. Hitchcock