Citation Nr: 18151280 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 15-05 862 DATE: November 20, 2018 ORDER New and material evidence having been received, the previously denied claim of service connection for radiculopathy of the left upper extremity is reopened. From February 8, 2012, an initial rating of 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) is granted, subject to the laws and regulations governing the payment of monetary awards. An initial rating in excess of 70 percent for PTSD with MDD is denied. REMANDED Service connection for radiculopathy of the left upper extremity is remanded. Service connection for cervical spine disorder is remanded. Service connection for a right shoulder disorder is remanded. Service connection for a left shoulder disorder is remanded.   FINDING OF FACT From the effective date of the award of service connection, February 8, 2012, the Veteran’s PTSD with MDD has been productive of suicidal ideation, depression, isolation, anger, difficulty sleeping and diminished interest; resulting in occupational and social impairment with deficiencies in most areas, but not total social impairment. CONCLUSION OF LAW From February 8, 2012, the criteria for an initial 70 percent rating, but not higher, for PTSD with MDD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1974 to December 1977 and October 1978 to June 1995. The case is on appeal from April 2013 and March 2014 rating decisions. The Veteran’s claim for service connection for PTSD with major depressive disorder was initially granted by the RO in the April 2013 rating decision and he was awarded a 30 percent rating. Thereafter, the RO increased his psychiatric rating to 50 percent, effective September 19, 2013, in the March 2014 rating decision. The increased rating matter remains in appellate status as the maximum psychiatric rating has not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has limited its discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Whether new and material evidence has been submitted to reopen the previously denied claim of service connection for radiculopathy of the left upper extremity. The Board will first address whether the previously denied claim of service connection for radiculopathy of the left upper extremity should be reopened. In a September 1997 rating decision, the RO denied service connection for a left upper extremity disorder. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in August 2012. No new evidence or notice of disagreement was received by VA within one year of the issuance of the September 1997 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for cervical radiculopathy of the left upper extremity is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also June 2013 private medical record (indicating that the Veteran’s cervical radiculopathy is related to service) and the February 2014 VA examination report. The reopened claim is further addressed in the remand section below. Entitlement to an initial rating in excess of 30 percent for PTSD with MDD prior to September 19, 2013, and 50 percent thereafter. 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 Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran’s psychiatric disability has been evaluated under the provisions of 38 C.F.R. § 4.130, DC 9411 throughout the appeal period, since February 8, 2012. This DC provides for a 30 percent rating where 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 warranted 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 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. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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. The highest rating of 100 percent is warranted where there is 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. Ratings for mental disorders are assigned according to the manifestations of particular symptoms. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). See also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. The Board notes that the record contains various global assessment of functioning (GAF) scores. However, GAF scores have been found to be unreliable and not sufficient evidence for rating a psychiatric disorder. See Golden v. Shulkin, 29 Vet. App. 221, 226 (2018). Facts and Analysis Following the Veteran’s February 2012 claim, he was afforded a February 2013 VA examination in which he was diagnosed with PTSD and major depressive disorder. The examiner determined that he suffers occupational and social impairment due to mild or transient symptoms which decrease work efficiency. The Veteran reported working full-time for the U.S. Postal Service as a mail carrier and maintaining contact and relationships with his three children. The examiner indicated he suffers from symptoms of avoidance, diminished interest, detachment, difficulty sleeping, outbursts of anger, along with depression and anxiety. She noted he has no suicidal or homicidal ideation. Following the April 2013 rating decision, the Veteran submitted a May 2013 statement in which he asserted he was entitled to higher ratings than those assigned. He noted his PTSD symptoms cause him to lack any emotional response, he incurs constant panic attacks, has impaired short and long-term memory which prevents him from completing tasks, and has difficulty with relationships. A September 2013 private medical opinion was submitted in which the examiner diagnosed the Veteran with PTSD, moderate to severe major depressive disorder, and panic disorder with agoraphobia. He stated the Veteran has significant mood issues with symptoms of anxiety, avoidance, isolation, loss of interest, severe sleep trouble, difficulty concentrating, feelings of worthlessness, irritability and anger. He further indicated the Veteran has thoughts of killing himself, but would not carry out these thoughts. Moreover, he stated the Veteran has “chronic death wishes” and that the last time he felt like killing himself was approximately three months prior to the examination. He indicated the Veteran has no auditory or visual hallucinations, no psychosis or delusions, but has had some memory impairment. Thereafter, the Veteran was afforded a February 2014 VA examination in which the examiner concluded he has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. He indicated the Veteran suffers symptoms of avoidance, diminished interest, feelings of detachment, irritability, hypervigilance, sleep trouble, panic attacks, flattened affect, disturbance of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The Veteran submitted a May 2014 statement in which he indicated his PTSD warrants a 70 or 100 percent rating. He stated his treating physician, Dr. H.J., has reported his PTSD with MDD causes major impairment, suggestive of a higher rating. Based on the evidence overall, the Board finds that an initial 70 percent rating for PTSD with major depressive disorder is warranted for the entire appeal period. The medical and lay evidence supports the Veteran’s PTSD symptoms include suicidal thoughts, noted as “chronic death wishes,” as shown in the September 2013 private medical opinion. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) (noting the importance of suicidal ideation in the criteria for a 70 percent rating). Following the February 2013 VA examination, the Veteran submitted a May 2013 statement, accompanied by the September 2013 private medical report. The Board determines this evidence was submitted in connection with his February 2012 claim and thus, from the initial date of service connection, the Veteran’s PTSD symptoms approximate occupational and social impairment with deficiencies in most areas, and a 70 percent rating. See 38 C.F.R. § 4.7. This is particularly so when resolving reasonable doubt in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Board finds that in the September 2013 private opinion, the Veteran’s treating physician indicated he has significant mood issues with anxiety, avoidance, isolation, severe sleep trouble, feelings of worthlessness, anger, as well as thoughts of killing himself or “chronic death wishes.” The Board notes the two VA examination reports, from February 2013 and February 2014, did not indicate suicidal ideation. However, when affording all reasonable doubt in his favor, the Board finds the Veteran exhibited suicidal ideation, suggestive of a 70 percent rating. While an increased rating to 70 percent is warranted, a further increase to 100 for total occupational and social impairment is not warranted at any time during the appeal period. The Board acknowledges the severity of the Veteran’s PTSD symptoms, including suicidal ideation, increased anger and severe sleep impairment. However, the evidence does not support that his PTSD causes total occupational and social impairment. A disability that justifies a 100 percent rating is so severely disabling that some of the examples of symptoms include posing a “persistent” threat of danger to others, not knowing one’s own name, the names of close relatives, or one’s occupation, an inability to perform activities of daily living, disorientation, impaired hygiene, and persistent delusions or hallucinations. The Board determines the Veteran has not exhibited such symptoms. Further, he has been able to maintain full-time employment as a mail carrier for the U.S. Postal service and reported maintaining contact and relationships with his three children. Therefore, after resolving reasonable doubt in the Veteran’s favor, the Board finds his PTSD with MDD warrants an initial 70 percent rating, but not higher. Such determination is based on a holistic analysis of the totality of the medical and lay evidence. See 38 U.S.C. § 5017(b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND 1. Service connection for radiculopathy of the left upper extremity. 2. Service connection for a cervical spine disorder. 3. Service connection for a right shoulder disorder. 4. Service connection for a left shoulder disorder. The Veteran contends that his current musculoskeletal disorders, including his neck, left upper extremity and both shoulders, are related to service. During his lengthy period of service, the Veteran reported several musculoskeletal complaints. A January 1982 service treatment record (STR) indicated the Veteran complained of pain in his left upper arm due to blunt trauma. A September 1983 STR showed the Veteran reported pain in his right shoulder which was so bad that he was not able to sleep for two days. The examiner indicated he suffers tenderness of the AC joint. An August 1986 STR noted he complained of pain in his left side for two days made worse by movement. The Veteran reported constant throbbing pain and was diagnosed with left side chest wall syndrome. Thereafter, a February 1994 STR showed the Veteran reported right side neck pain radiating to the right shoulder. The examiner indicated his right shoulder appeared slightly lower than the left and he was diagnosed with cervical strain. A January 1995 STR showed the Veteran was in a motor vehicle accident (MVA) and that he complained of neck and shoulder pain for three days due to the MVA. He was diagnosed with muscle spasm of the upper trapezius. After service, the Veteran underwent a private medical examination in June 2013 by Dr. J.J. who provided a positive nexus opinion. He indicated the Veteran’s documented in-service back, neck and shoulder injuries mark the onset, cause or contribute to his current back, neck and shoulder conditions, including his cervical disc disease and cervical radiculopathy. The Veteran was afforded a February 2014 VA examination in which the examiner concluded the Veteran’s cervical spine degenerative changes, radiculopathy and shoulder disorders are not related to his -inservice injuries. She stated the Veteran’s service treatment records do not reflect that he had a chronic cervical condition or chronic left and right shoulder conditions during service. She noted there is also no medical evidence suggestive of a chronic or continuing cervical or shoulder condition following service. She stated with chronic conditions, one would expect to see numerous and repeated visits to medical providers which did not occur. She noted the Veteran’s reported parachute jumps in service would not necessarily lead to injuries and he has also been employed following service as a full-time mail carrier, which could lead to the disorders. The Board finds that a new VA examination is warranted for the four claimed disorders with a medical opinion. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination by a physician in connection with his four musculoskeletal service connection claims. The entire claims file must be reviewed by the examiner. Any necessary testing should be conducted. The examiner should first identify any left upper extremity, cervical spine, and right and left shoulder disorders. 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 any identified musculoskeletal disorder(s) had its onset during, or is otherwise causally related to, service, to include his in-service parachute jumps. The examiner should address the Veteran’s in-service musculoskeletal complaints and treatment, including what is documented in the STRs. (Continued on the next page)   A complete rationale should be provided for any opinion reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel