Citation Nr: 18150471 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 14-20 556A DATE: November 15, 2018 ORDER For the period from March 1, 2011 to January 24, 2017, a 50 percent rating for other specified trauma/stressor-related disorder is granted. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for sleep apnea, including as secondary to TBI and a service-connected psychiatric disorder, is remanded. Entitlement to service connection for major depressive disorder (MDD) secondary to a service-connected psychiatric disorder is remanded. Entitlement to an initial rating excess of 50 percent for other specified trauma/stressor-related disorder is remanded. Entitlement to a rating in excess of 20 percent for chronic muscular strain superimposed on degenerative instability of the lumbar spine is remanded. Entitlement to a rating in excess of 10 percent for posttraumatic synovitis of the left ankle is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT For the period from March 1, 2011 to January 24, 2017, other specified trauma/stressor-related disorder more closely approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW For the period from March 1, 2011 to January 24, 2017, the criteria for a 50 rating for other specified trauma/stressor-related disorder were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9410. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1990 to February 1994 and from November 2004 to April 2007. This case comes from March 2010, August 2010, December 2013, March 2014, and June 2017 rating decisions. In a September 2010 rating decision, service connection was granted for tinnitus, and in an April 2011 rating decision, service connection was granted for a left knee sprain. The awards represent a full grant of the benefits sought for those issues. In April 2013, the Veteran appointed the attorney listed on the title page as his representative, thereby revoking the power of attorney then of record. In a December 2013 rating decision, the RO increased the rating for the back disability to 20 percent, effective from April 2, 2013. As the increase did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In addition, the Veteran’s October 2010 submission noting that he was dazed and saw stars after a mortar explosion blew him in to a wall is reasonably construed as a notice of disagreement (NOD) with the August 2010 rating decision denying service connection for TBI. As such, new and material evidence is unnecessary and thus, the issue is characterized as reflected on the title page. The Board notes that the March 2010 rating decision in which service connection was granted for a psychiatric disorder contemplated the sleep difficulty referenced in the Veteran’s August 2009 claim. His November 2017 claim for service connection is specifically for sleep apnea. In September 2018, the Veteran withdrew his request for a Board hearing. INITIAL RATING Initial compensable rating for other specified trauma/stressor-related disorder for the period from March 1, 2011, to January 24, 2017. Procedural Background When granting service connection for the Veteran’s psychiatric disorder in March 2010, which was then diagnosed as posttraumatic stress disorder (PTSD), the RO assigned an initial 50 percent rating, effective from August 2009, the date of receipt of his service connection claim. After additional VA mental health records were associated with the file in May 2010, the RO scheduled VA examinations with respect to the severity of PTSD, which were conducted in July 2010 and September 2010. The Veteran’s October 2010 and/or November 2010 submission noting impaired impulse control, impaired memory, and difficulty in adapting to stressful circumstances is reasonably construed as a NOD with the initial 50 percent rating assigned in March 2010. To the extent there was ambiguity, in the absence of clarification, reasonable doubt is resolved in the Veteran’s favor. Thereafter, in a December 2010 rating decision, the RO decreased this rating to 0 percent (noncompensable), effective from March 1, 2011, which created a staged rating. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran continued the appeal. “Because the claims process before the agency can be lengthy, and because the level of a veteran’s disability may fluctuate over time, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process.” See O’Connell v. Nicholson, 21 Vet. App. 89, 93 (2007). Although the RO styled the issue as one of reduction and although there may have been some reliance by the Veteran regarding the initially assigned 50 percent rating, given the outcome of this decision, any reduction aspect of the issue is moot. In addition, to the extent that an April 7, 2011 submission references withdrawal with respect to the rating for the service-connected psychiatric disorder, the Board notes that “withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). See also Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018) (adopting and applying the Delisio standard). In this case, the April 7, 2011 submission at issue was submitted on the same date as the RO’s letter noting that the additional evidence the Veteran submitted in February 2011 was under consideration. Moreover, an April 25, 2011 rating decision addressing the rating for the service-connected psychiatric disorder was issued, and in December 2011, the Veteran filed a NOD with that decision. To the extent there was ambiguity as to the Veteran’s intent, in the absence of clarification, reasonable doubt is resolved in the Veteran’s favor. As such, the Board finds that the withdrawal of the claim was not effective. Therefore, the Board concludes that March 2010 rating decision is properly on appeal. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s psychiatric disorder has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 10 percent rating is warranted where there is 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 continuous medication, a 10 percent rating. A 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, 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 (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. Analysis For the period from March 1, 2011 to January 24, 2017, the Veteran’s service-connected psychiatric disorder is assigned a noncompensable rating. The Board that both prior to March 1, 2011, a 50 percent rating is assigned for PTSD, and from January 24, 2017, a 50 percent rating is assigned for other specified trauma/stressor-related disorder (previously PTSD). The Board notes that although the RO assigned the noncompensable rating for the period at issue based on a finding that the Veteran did not meet the criteria for PTSD, the November 2009 VA examination at the beginning of the appeal reflects a diagnosis of PTSD based on combat stressors consistent with the Veteran’s award of a Combat Action Badge during his second period of service in southwest Asia. In addition, VA treatment records in May 2010, June 2010, and September 2010 show a diagnosis of PTSD. Symptoms were noted to include anxiety, anger, depression and insomnia, and test results were reported to indicate severe loss of interest and change in sleeping pattern, moderate concentration difficulty and agitation, as well as mild symptoms of sadness, and suicidal thoughts. Further, VA treatment records in January 2012 reflect a diagnosis of PTSD in October 2011, as well as prescribed medication for depressive sleep-related symptoms. On the other hand, both the July 2010 and September 2010 VA examiners stated that the prior diagnosis of PTSD was erroneous because the Veteran did not meet the diagnostic criteria. Although the January 2017 VA examiner agreed, noting that the Veteran only met the criteria for subthreshold PTSD, the examiner determined that the most appropriate diagnosis for the Veteran’s psychiatric symptoms was other specified trauma/stressor-related disorder. Moreover, in a November 2017 addendum, the examiner stated that whether the diagnosis represents a progression of PTSD or whether the diagnosis of PTSD was erroneous, in either case, the etiology of the Veteran’s psychiatric symptoms is the same, and that the diagnosis of other specified trauma/stressor-related disorder replaces the diagnosis of PTSD. The Board notes that the Veteran is competent to report his symptoms. Although the 2010 VA examiners questioned the Veteran’s credibility, the January 2017 VA examiner reported that the Veteran merely tends to overemphasize symptomatology and minimize counter-productive behaviors, such as binging on alcohol. In addition, and although the January 2017 VA examiner concluded that symptoms associated with the Veteran’s service-connected psychiatric disorder result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation, the RO assigned a 50 percent rating, effective in January 2017, based on the 2017 VA opinions, which reflects symptoms not dissimilar from those prior or subsequent to, the period at issue. The Board notes that stabilization of ratings regulation provides that rating agencies will handle cases affected by change of medical findings or diagnosis to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s psychiatric symptoms more nearly approximated the criteria for a 50 percent rating, for the period from March 1, 2011, to January 24, 2017. See 38 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. Of particular significance in this case, the list of symptoms under the relevant rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). Therefore, at least a 50 percent rating is warranted for other specified trauma/stressor-related disorder for the period from March 1, 2011 to January 24, 2017. The Board is proceeding with this intermediary grant of benefits to the Veteran. The remaining issue on appeal becomes entitlement to an initial rating in excess of 50 percent for other specified trauma/stressor-related disorder. REASONS FOR REMAND 1. Service connection for TBI. 2. Service connection for sleep apnea. In his October 2010 NOD, the Veteran noted having been dazed and seeing stars after a mortar explosion blew him in to a wall during service in southwest Asia. In addition, the June 2010 VA report of examination reflects a history of at least three concussive injuries secondary to explosions or mortar attacks during service, as well as having been hit on the head by a turret hatch cover. Further, and although service connection for tension headaches has been established, VA treatment records in August 2010 noting the Veteran was taking cognitive classes reflect a four-year history of episodes during which the Veteran sees stars, with vision slowly tunneling down over 10 minutes, assessed as migraine equivalents (e.g., acephalgic migraine or visual aura without headache). Additionally, and although a July 2010 VA examination report notes no TBI residuals, the denial of service connection in the May 2018 statement of the case noting that injury events were shown in service and/or conceded by VA but that there was no diagnosis of TBI is based, at least in part, on the January 2017 VA examination report noting no TBI. As the January 2017 VA examination report does not address references to in-service head injuries, including the Veteran’s lay statements in that respect, it is not completely adequate. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, VA examination is warranted to obtain an adequate opinion with respect to the claim of service connection for TBI. As the claim of service connection for sleep apnea on a secondary basis is contingent, at least in part, upon a first award of service connection for TBI, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Therefore, the issue of entitlement to service connection for sleep apnea must also be remanded. 3. Service connection for major depressive disorder. 4. Initial rating excess of 50 percent for other specified trauma/stressor-related disorder. In addition, the Veteran maintains that his psychiatric symptoms are worse than reflected in the 50 percent rating and are worse since VA examination in January 2017. In a June 2018 submission, it is asserted that the Veteran’s psychiatric symptoms warrant at least a 70 percent rating, referencing manifestations to include suicidal ideation and obsessional rituals. In view of the evidence and the Veteran’s assertions, VA examination is warranted with respect to the severity of his psychiatric symptoms and the etiology of major depressive disorder. As the Veteran asserts that major depressive disorder, noted in October 2017 VA treatment records, is secondary to service-connected psychiatric disorder, this issue is also remanded. 5. Rating in excess of 20 percent for chronic lumbosacral muscular strain with degenerative disc disease of the thoracic spine. 6. Rating in excess of 10 percent for posttraumatic synovitis of the left ankle. The Veteran should be scheduled for a new VA examination to assess the severity of the service-connected lumbar spine and left ankle disabilities, to include complying with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). With respect to the Veteran’s back disability, the January 2017 VA spine examination report reflects lumbar strain and compression fracture at L1, and forward flexion to 50 degrees. Although the report appears to indicate that the range of motion reported contemplated the functional impact of a week-long flare noted to be slowly resolving, the functional impact of a flare-up in terms of degrees of range of motion was not estimated, to include as to flares noted to last longer than a week making it difficult to walk and turn. As such, the examination report is not completely adequate. Thus, a new VA examination is warranted. The Board notes that associated bowel/bladder incontinence was referenced in the July 2010 VA examination report. As to the left ankle, the January 2017 VA ankle examination does not include passive range of motion findings. In addition, the opinion with respect to flare-ups is not completely clear in that left ankle pain on flare up was noted to prevent the Veteran from running or walking long distances, yet no change in range of motion of the left ankle on flare up was reported. Based on the foregoing, the examination report is not completely adequate. Thus, a new VA examination is warranted. 7. TDIU. The issue of entitlement to a TDIU is inextricably intertwined with the increased rating claims. Thus, it must be remanded as well. See Harris. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA TBI examination by an appropriate medical professional. The entire claims file must be reviewed by the examiner. The examiner is to conduct all indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has residuals of TBI related to his active service, to include as a result of explosions and having been hit on the head by a turret hatch cover. A rationale for all opinions expressed should be provided. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected other specified trauma/stressor-related disorder (previously diagnosed as PTSD). The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. In adition the examiner is to provide an opinion as to whether it is at least as likely as not that major depressive disorder or sleep apnea, is caused or aggravated by his service-connnected other specified trauma/stressor-related disorder (previously diagnosed as PTSD). The term “aggravation” means an increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability. A rationale for all opinions expressed should be provided. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability and left ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s back and left ankle disabilities under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. The examiner should report range of motion findings in degrees, on both active and passive range of motion testing, in weight bearing and nonweight-bearing, with range of motion of the uninjured other side (if applicable). The examiner should estimate the functional impact of a flare-up in terms of degrees of range of motion.   If any of these assessments cannot be accomplished, it should be explained why. A rationale for all opinions expressed should be provided. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Taylor