Citation Nr: 18149402 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-38 256 DATE: November 9, 2018 ORDER Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is denied. REMANDED The issue of entitlement to an initial compensable rating prior to August 8, 2018, and in excess of 20 percent thereafter for right shoulder tendonitis is remanded. The issue of entitlement to an initial compensable rating prior to August 8, 2018, and in excess of 10 percent thereafter for a left elbow strain is remanded. The issue of entitlement to an initial rating in excess of 10 percent for service-connected back strain is remanded. The issue of entitlement to an initial rating in excess of 10 percent for service-connected right knee patellofemoral syndrome is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s PTSD has been manifested by symptoms productive of functional impairment comparable to occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 2009 to May 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision. The Board remanded the case for further development in May 2018. The case has since been returned to the Board for appellate review. Increased Rating for PTSD Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered along with the effect of disability upon ordinary activities. 38 C.F.R. §§ 4.1, 4.2, 4.10. Service connection is in effect for PTSD at a 50 percent disability rating effective from May 18, 2013, the day following discharge from active duty. The Veteran claims that his service-connected PTSD is severe and warrants a higher evaluation. Evaluations for psychiatric disabilities are assigned pursuant to 38 C.F.R. § 4.130. Under the general rating formula for mental disorders, a 50 percent rating is warranted for PTSD 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 such as, 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 9411. A 70 percent rating for PTSD contemplates 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. A 100 percent disability rating is warranted for PTSD resulting in 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. Turning to the relevant evidence, the Veteran was afforded a VA examination in June 2013. The Veteran reported recently being discharged from the military and currently attending college full-time. He endorsed difficulty with concentration. Symptoms attributable to the diagnosis included depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty establishing effective relationships, and difficulty understanding complex commands. The examiner found that the Veteran’s mental condition resulted in occupational and social impairment with a decrease in work efficiency and intermittent periods of inability to perform occupation tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. A July 2014 VA caregiver program assessment record indicates the Veteran had difficulty sleeping and experienced nightmares. The record indicates that he could tolerate public places but did not allow people to get close to him. In a February 2015 treatment note, the Veteran reported feeling depressed maybe once a month and nightmares once a week. The attending social worker noted the Veteran was neatly groomed, cooperative, and pleasant. His mood was euthymic with full affect and good judgment. The Veteran denied suicidal and homicidal ideation, with no psychotic content. The Veteran was afforded another VA examination in February 2016. The examiner noted the Veteran worked from November 2014 to July 2015 before the company went bankrupt. He earned his B.A. in business management and is currently working on his M.S. degree. The Veteran was not currently undergoing psychiatric treatment. Current symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, and difficulty establishing and maintaining relationships. The examiner concluded the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. In a February 2017 treatment record, the Veteran reported persistent depressed mood, irritability, difficulty concentrating, insomnia, and feeling stressed. He denied hopelessness, guilt, or changes in appetite. Following examination, the attending psychiatrist noted the Veteran was groomed and hygienic, and in no acute distress. He expressed no delusions, paranoia, and his insight was fair. He denied suicidal ideation, homicidal ideation, and hallucinations. On mental health evaluation in February 2018, the Veteran was noted to be anxious, guarded, with notable alexithymia. The Veteran reported low mood, anhedonia, poor sleep, low energy, and poor concentration. He denied intent or plan regarding suicide or homicide. He was noted to be dressed and groomed appropriately. His affect was anxious, constricted, and congruent with stated mood. No psychotic thought content was noted. Upon evaluation in July 2018, the Veteran reported that nightmares, hypervigilance, startle response, and avoidance have slightly improved. The Veteran denied suicidal ideation, homicidal ideation, and hallucinations. He reported he is less irritable but still becomes upset with his girlfriend. The Veteran underwent another VA examination in August 2018. He endorsed ongoing problems focusing, irritability, anger, flashbacks, nightmares, and problems around crowds. It was noted the Veteran was currently working at a hotel. Following examination, the examiner noted the Veteran’s thoughts were coherent and goal directed with no evidence of hallucinations, delusions, or paranoid thinking. He demonstrated a dysphoric affect. His manner of dress and hygiene were appropriate. Current symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances in mood and motivation, impaired impulse control, difficulty adapting to stressful circumstances, and difficulty establishing and maintaining relationships. The examiner noted the Veteran has passive thoughts to injure self or others, but there is no imminent threat. The examiner concluded the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. Based on the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 50 percent for the service-connected PTSD for the period on appeal. Rather, the Veteran’s disorder has approximated “occupational and social impairment with reduced reliability and productivity” and is therefore adequately contemplated by the assigned 50 percent rating. Indeed, the criteria for a 70 percent rating is not approximated here. The evidence indicates consistent depressed mood, sleep impairment, nightmares, anxiety, and difficulty establishing and maintaining relationships. The record also indicates concentration difficulty and irritability, but the Veteran has attended school full-time and worked. See, e.g., August 2018 VA examination. Also, he was consistently well groomed and hygienic; his thought process was intact; there was no evidence of paranoia, delusions, or hallucination; and he denied suicidal and homicidal ideation. The Board has also fully considered the lay statements of record, which are competent insofar as they relate to observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Notably, however, the lay evidence of record is not competent to provide an expert opinion as to the Veteran’s level of functional impairment as a result of his PTSD symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, the lay evidence is afforded less probative value than the objective psychiatric medical evidence of record. Accordingly, the Board finds that a rating in excess of 50 percent is not warranted for the period of time covered by the appeal. In reaching this decision the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the claim, the doctrine does not apply, and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND A remand is warranted for additional medical inquiry into the increased rating claims for back, knee, elbow, and shoulder disorders. Pursuant to the May 2018 remand, the Veteran underwent VA examination of these disabilities in August 2018. The reports do not contain sufficient detail addressing range of motion in the affected joints. The findings do not address passive range of motion or the degree of limitation from pain on weight-bearing and nonweight-bearing testing. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Another remand is necessary therefore. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). The claim for a TDIU is intertwined with these remanded claim, and must be remanded as well. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then schedule examinations of the right shoulder, left elbow, low back, and right knee disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If this cannot be performed, the examiner should explain why. The examiner should also note whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. The examiner should assess additional functional impairment in terms of the degrees of additional range of motion loss, if possible. If the Veteran is not being observed during a flare-up or after repeated use over time, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran’s descriptions of repeated use or flares’ severity, frequency, duration, and/or functional loss manifestations. If the additional functional impairment cannot be assessed or estimated in terms of the degrees of additional range of motion loss, the examiner must explain why. 3. Thereafter, readjudicate the claims remaining on appeal, to include the TDIU claim. If any benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case and provided an opportunity to respond before the case is returned to the Board. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel