Citation Nr: 18149028 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 10-04 301 DATE: November 8, 2018 ORDER Entitlement to an initial rating higher than 50 percent for PTSD is granted. REMANDED Entitlement to a rating higher than 20 percent left (minor) shoulder impingement is remanded. Entitlement to a rating higher than 10 percent for low back disability for the period prior to October 1, 2010 is remanded. Entitlement to a rating higher than 10 percent for right knee disability is remanded. FINDING OF FACT The evidence of record is at least in equipoise as to whether Veteran’s PTSD has resulted in occupational and social impairment with reduced reliability and productivity in most areas throughout the initial rating period on appeal. CONCLUSION OF LAW Affording the Veteran all benefit of the doubt, the criteria for an initial rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to an initial rating higher than 50 percent for PTSD Legal Requirements 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of the disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence that bears on occupational and social impairment, rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Percentage ratings for mental health disabilities are based on the criteria in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list but, rather, serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating for a mental disorder. The Board notes that the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) applies to all claims that were pending before the RO on or after August 4, 2014, as was the case here. DSM-5 no longer relies on Global Assessment of Functioning (GAF) scores. Nonetheless, the Board will consider notations of GAF scores for those parts of the rating period prior to August 4, 2014. Rating Criteria The criteria for a 50 percent rating are as follows: 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9413. The criteria for a 70 percent rating are as follows: 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); inability to establish and maintain effective relationships. Id. The criteria for a 100 percent rating are as follows: 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; memory loss for names of close relatives, own occupation, or own name. Id. Discussion A November 2013 rating decision granted service connection for PTSD and assigned an initial rating of 30 percent rating, effective August 21, 2012, which the Veteran appealed. A July 2016 Board decision allowed of a temporary total disability rating due to hospitalization from November 27, 2012, to January 31, 2013 and allowed an initial 50 percent rating for the period prior to November 27, 2012, and from February 1, 2013, forward. The Veteran appealed the August 2017 Board decision denying a rating in excess of 50 percent for PTSD to the Court of Appeals for Veterans Claims (Court). While the appeal was pending, the Secretary, VA, and the Veteran, through his attorney, submitted a Joint Motion for Remand (JMR) for vacation in part of the August 2017 Board decision and remand back to the Board. See 05/21/2018 CAVC. The consensus of the parties in the JMR was that the Board provided insufficient reasons and bases for the August 2017 decision in that it did not conduct a holistic assessment of the Veteran’s PTSD disability picture. Specifically, the Board did not consider evidence favorable to the Veteran, e.g., reports of passive suicide ideation; and, the decision did not address why some of the symptoms listed in the 100 percent criteria did not merit a rating higher than 50 percent. The last basis is essentially mooted by the rating the Board allows in this decision. Hence, the Board will focus on the basis for finding that the preponderance of the evidence is against a total rating. The JMR noted that the August 2017 Board decision did not address the evidence that indicated that the Veteran’s symptomatology included persistent delusions or hallucinations, grossly inappropriate behavior, or intermittent inability to perform activities of daily living (ADL). See 38 C.F.R. § 4.130. The evidence of record reflects that in August 2012 the Veteran reported that at times voices told him to hurt himself or others and that to counter them, he would think of other things or about his wife. On another occasion, the Veteran reported that at times he would hear movement in another room that his wife said she did not hear; or, he would hear knocking and voices, but he could not make out the words. In other sessions, the Veteran referred to hearing sounds that no one else could hear. See 08/03/2016 CAPRI, P. 246, 643. The overall disability picture, however, is that hallucinations or delusions have not chronically manifested. The several mental status examinations of record reflect denials of visual or auditory hallucinations, and objective examination has not revealed evidence of any. The outpatient records consistently note that the Veteran has been, and is, cognitively intact. The evidence of record also reflects that the Veteran’s memory impairment is mild. Further, while one of the Veteran’s primary symptoms is irritability, his disability picture has not reflected grossly inappropriate behavior. The Veteran’s wife has consistently denied that the Veteran either strikes others or throws items when angry. Further, the mental health providers note that the Veteran had no history of compromised impulse control. See 08/01/2013 CAPRI, P. 36-37; 04/03/2014 CAPRI, P. 4; 08/03/2016 CAPRI P. 662; 07/16/2013 VA Examination; 09/07/2016 C&P Examination. The preponderance of the evidence shows that the Veteran’s PTSD symptomatology has impaired his ability to attend to his ADLs, but it has not extinguished it. The Veteran’s wife reported that she had to provide substantial assistance to the Veteran while he was recovering from surgery on an upper extremity. The assistance she had to render due to his PTSD was limited to reminders to him to shower, pay bills, and to use his CPAP device. See 04/03/2014 CAPRI, P. 26. The evidence set forth above shows that while the Veteran’s impairment is significant, it has not produced total impairment as required for the higher-still 100 percent rating. During the early stages of the rating period, the Veteran reported passive suicide ideation, meaning thoughts about suicide without any actual plan or intent to commit suicide. During the telephone call by which he arranged for VA treatment, he reported that sometimes he wished that he was dead. At one outpatient session, the Veteran reported that he had thought about suicide two weeks prior. See 08/01/2013 CAPRI P. 273; 11/12/2013 CAPRI, P. 470. The Court has held that there is no real distinction between passive and actual suicide ideation, and that presence of either might warrant a 70 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). While the Board allows a 70 percent rating in this decision, it nonetheless notes that the Veteran’s outpatient records, and his C&P Examination reports reflect that he has been assessed as low risk for self-harm or harm of others. The Veteran’s chronic PTSD symptoms of record have been continuous depressed mood, irritability, anger, sleep impairment, hyperarousal, and hypervigilance, as shown by his frequently checking the doors of his home and the perimeter of the home. The Veteran’s anger and irritability are such that he has resorted to social isolation, including in his own home, to avoid outbursts and conflict with others. His wife has stated that they no longer have are friends with other couples due to the Veteran’s isolation. He was described as being depressed and angry all of the time and she could not have a conversation with him on any topic. See 04/22/2016 Buddy. She also has stated that after the Veteran had an incident of road rage, she started driving him to all of his appointments. In short, the Veteran’s continued mood disturbance has deprived him of the ability to function independently. The Board finds that the impairment, holistically, impacts most areas, which is adequately compensated for by a 70 percent rating. 38 C.F.R. §§ 4.3, 4.7, 4.10. The Veteran’s occupational impairment has been addressed by the total rating due to unemployability which has been in effect for the entire rating period. REASONS FOR REMAND The Veteran’s attorney submitted written argument wherein he asserted that on remand the Veteran’s low back disability should be rated at 40 percent for the entire rating period. The Board notes, however, that in the decision that vacated the Board’s decision as it applied to the low back rating for the period prior to October 1, 2010, the Court specifically noted that it did not address the low back rating for the period October 1, 2010 forward. See 04/05/2018 CAVC, P. 7. Hence, that part of the rating period is not before the Board. 1. Entitlement to a rating higher than 20 percent for left (minor) shoulder impingement is remanded. The consensus of the parties in the JMR is that the July 2013 and August 2016 examinations were inadequate because the examiners did not assess the impact of the Veteran’s reported flare-ups as required by the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Hence, the Veteran is entitled to new examinations to address all facets of his disability. 2. Entitlement to a rating higher than 10 percent for low back strain, osteoarthritis, for the period prior to October 1, 2010 is remanded. The September 2017 Court decision reflects that 2016 Board decision was insufficient because the 2008 examination on which it was based was inadequate. It was inadequate because the examiner did not assess the impact of the Veteran’s reported flare-ups. 3. Entitlement to a rating higher than 10 percent for right knee osteoarthritis is remanded The reasons for the left shoulder remand are incorporated here by reference. The matters are REMANDED for the following action: 1. Arrange an examination(s) of the Veteran by an appropriate examiner(s) to determine the extent and severity of his left shoulder and right knee disabilities. The examiner must consider both the clinical findings and the Veteran’s lay reports from which an assessment of the impact of the Veteran’s reported flare-ups and use over time expressed in terms of degrees of lost range of motion can be made. If the examiner reports that the assessment cannot be made, the examiner must state whether it is due to the absence of knowledge in the medical community at large, or the examiner’s lack of training or experience.  2. Send the claims file to the examiner who conducted the 2008 spine examination or another comparably qualified examiner if that individual is no longer available. Ask the examiner to review the Veteran’s lay reports of his flare-ups and the clinical findings on examination and opine on the impact of the Veteran’s reported flare-ups expressed in terms of degrees of lost range of motion. If the examiner reports that the assessment cannot be made, the examiner must state whether it is due to the absence of knowledge in the medical community at large, or the examiner’s lack of training or experience. If the latter, send the claims file to an examiner with the requisite training and experience to make the assessment. Double Click Here to Sign Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.T. Snyder