Citation Nr: 18152611 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-19 414A DATE: November 23, 2018 ORDER Entitlement to an initial 70 percent rating, but not higher, for posttraumatic stress disorder (PTSD) with panic attacks and an alcohol use disorder is granted. REMANDED The issue of entitlement to service connection for a lumbar spine disability is remanded. The issue of entitlement to an initial rating in excess of 10 percent for cervical spine strain is remanded. FINDING OF FACT The service connected psychiatric disability has been shown to be manifested by no more than a depressed mood, a flattened affect, anxiety, suspiciousness, panic attacks occurring more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, suicidal ideation, and persistent delusions or hallucinations, and results in deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial 70 percent rating, but not higher, for PTSD with panic attacks and an alcohol use disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.3, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1999 to February 2005. He served in Southwest Asia. The Veteran appeared at an April 2017 videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Initial Rating for PTSD The Veteran asserts that an increased rating is warranted for service connected PTSD with panic attacks and an alcohol use disorder as the disabilities are manifested by significant symptoms which impair his daily activities and vocational pursuits. A January 2014 rating decision established service connection for PTSD and assigned a 30 percent rating, effective September 3, 2012. A March 2016 rating decision recharacterized the service connected psychiatric disability as PTSD with alcohol use disorder and assigned a 50 percent rating, effective September 3, 2012. An April 2017 rating decision recharacterized the service connected psychiatric disability as PTSD with panic attacks and alcohol use disorder and continued the 50 percent rating, effective September 3, 2012. Disability ratings are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. A 50 percent rating is warranted for PTSD which is productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or 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. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 an inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. Where there is a question as to which of two ratings shall be applied, the higher rating 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 The report of a December 2013 Department of Veterans Affairs (VA) psychiatric examination shows that the Veteran complained of irritability, anxiety, panic attacks while around crowds, emotional detachment, and marital problems. He reported that he had just started a new position as the regional manager of a security firm. The Veteran acknowledged that he experienced only minimal occupational impairment due to the service connected psychiatric disability. The examiner observed that the Veteran was dressed in clean casual clothes and “fully oriented.” On mental status examination, the Veteran exhibited a depressed/dysphoric mood, a constricted affect, anxiety, suspiciousness, panic attacks that occur weekly or less often, no evidence of memory and/or concentration impairment, no current thoughts of suicide, and no evidence of a formal thought disorder. Diagnoses of PTSD with insomnia and alcohol related disorders were advanced. The examiner noted that the PTSD was productive of “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 report of a February 2016 VA psychiatric examination shows that the Veteran used alcohol “to try to reduce/manage symptoms of PTSD.” The report of a March 2017 VA psychiatric examination states that the Veteran complained of anger, irritability, anxiety, panic attacks around crowds, emotional detachment, and marital problems. He reported that he had just started a new position with the VA’s Veterans Benefits Administration. The examiner observed that the Veteran was well groomed, alert, and “oriented x 4.” On mental status examination, the Veteran exhibited an “okay” mood, a mood congruent affect, irritability, normal speech, logical thought processes, anxiety, suspiciousness, panic attacks that occur weekly or less often, no evidence of “any significant memory concerns,” no current suicidal or homicidal ideation, and no evidence of a delusions or hallucinations. Diagnoses of PTSD with panic attacks and alcohol use disorder were made. The examiner noted that the PTSD was productive of “occupational and social impairment with reduced reliability and productivity.” At the April 2017 Board hearing, the Veteran testified that his PTSD caused him to feel overwhelmed in public; to limit his social interactions; and to dislike driving his car. The report of a May 2017 psychiatric examination conducted for VA states that the Veteran complained of anger, irritability, anxiety, panic attacks around crowds, emotional detachment, and marital problems. He reported that he worked for the VA’s Veterans Benefits Administration. He clarified that he did not like his job due to the “combative environment” and kept working only to provide his wife with health insurance. The examiner observed that the Veteran was appropriately dressed, alert, and “oriented x 4.” On mental status examination, the Veteran exhibited a depressed mood, a flattened affect, anxiety, suspiciousness, panic attacks occurring more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, suicidal ideation, and persistent delusions or hallucinations. The examiner commented that “this Veteran/Service Member should be considered an increased but not current imminent risk” for suicide. The Veteran was diagnosed with PTSD, traumatic brain injury (TBI) residuals, and alcohol use disorder. The examiner noted that the PTSD was productive of “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.” A September VA mental health clinic treatment record states that the Veteran reported having run out of his medications. He complained of a depressed mood, panic attacks occurring every two weeks, anger and associated physical violence, chronic worry, hypervigilance, and sleep impairment. The Veteran was observed to be appropriately dressed and oriented to self, date, location, and situation. On mental status examination, the Veteran exhibited a euthymic mood, a full and reactive, mood congruent affect, normal speech and thought processes, good memory, and no delusions, hallucinations, or suicidal or homicidal ideation. The Veteran was diagnosed with PTSD and alcohol abuse. The service connected psychiatric disability has been objectively shown to be manifested by no more than a depressed mood, a flattened affect, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, suicidal ideation, and persistent delusions or hallucinations. While acknowledging that the Veteran has been able to maintain his current employment with VA, the Board of Veterans’ Appeals (Board) notes that the Veteran has left several other positions and has reportedly remained employed solely due to his spouse’s need for health insurance. The Board finds that the service connected psychiatric disability picture most closely approximates the criteria for a 70 percent rating under Diagnostic Code 9411. 38 C.F.R. § 4.7. The evidence shows that the Veteran has serious symptomatology and is found to be a suicide risk by treating personnel. Therefore, that indicates deficiencies in most areas. While the service connected psychiatric symptoms are clearly significantly disabling, the record does not establish and the Veteran does not allege that the service connected psychiatric disability is productive of total occupational and social impairment warranting assignment of a 100 schedular rating. Therefore, the Board concludes that the weight of the evidence demonstrates that an initial 70 percent schedular rating and no higher is warranted for the PTSD with panic attacks and an alcohol use disorder. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS FOR REMAND 1. The issue of entitlement to service connection for a lumbar spine disability is remanded. The Veteran asserts that service connection for a lumbar spine disability is warranted as he sustained lumbar spine trauma residuals in the same in service motor vehicle accident in which the service connected TBI residuals and cervical spine disability were incurred. The service medical records show that the Veteran was seen for back pain and involved in a January 2004 motor vehicle accident. A September 2001 treatment record states that the Veteran complained of back pain at the L5 level. An assessment of low back pain was advanced. A March 2004 treatment record states that the Veteran was involved in a motor vehicle accident approximately two months prior to the evaluation. The report of an October 2014 VA spine examination states that the Veteran stated that a post service employment physical evaluation conducted shortly after service separation had revealed “some tears in my spine.” Documentation of the cited private evaluation is not of record. An October 2014 lumbar spine X ray study was reported to show “minimal degenerative changes with tiny end plate osteophytes and slight narrowing at L2-3.” The VA examiner did not diagnose a thoracolumbar or back disability. A March 2016 addendum to the October 2014 VA spine examination report states that “if one chooses, a diagnosis of mild degenerative joint disease L2-3 could be made” and “however, this condition would less likely as not be related to the single complaint of back pain found in 2001.” The VA nurse practitioner commented that “there is no evidence to establish a direct nexus between any service event and the more recent findings of some mild DJD L2-3.” An April 2017 written statement from the Veteran’s mother indicates that she is a registered nurse. She reported that the Veteran injured his back in the in service January 2004 motor vehicle accident and was treated at the Plains Regional Medical Center in Clovis, New Mexico, immediately after the accident. She clarified further that the Veteran’s “back has also worsened since the vehicle accident.” Clinical documentation of the cited private treatment is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that further VA lumbar spine evaluation is needed to resolve the apparent conflict in the record as to the relationship between the documented in service January 2004 motor vehicle accident and the currently diagnosed lumbar spine degenerative arthritis. 2. The issue of entitlement to an initial rating in excess of 10 percent for cervical spine strain is remanded. The Veteran contends that an initial rating in excess of 10 percent is warranted for the service connected cervical spine disability. At the April 2017 Board hearing, the Veteran testified that the service connected cervical spine disability had increased in severity and now significantly interfered with his sleep. The Veteran was last provided a VA spine examination of the cervical spine in June 2013. Because of the Veteran’s testimony as to the worsening of the cervical spine disability, the Board finds that further VA cervical spine evaluation is needed to determine the current nature and severity of the disorder. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider, including the Plains Regional Medical Center, who has treated him for any lumbar spine disabilities and the service connected cervical spine disability. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records dated after June 2018. 3. Schedule the Veteran for a VA spine examination to assist in determining the current nature of any identified lumbar spine disability and any relationship to active service and the current nature and severity of the service connected cervical spine disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all lumbar spine disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lumbar spine disability had its onset during active service or is related to any incident of service, including the documented in service January 2004 motor vehicle accident. Reconcile the opinion with the other opinions of record, including from the Veteran’s mother, a registered nurse. (c) Opine whether a lumbar spine disability is due to, the result of, or aggravated by a service-connected cervical spine disability. (d) Provide ranges of motion for passive and active motion of the cervical spine. The examiner should state whether there is any additional loss of cervical spine function due to painful motion, weakened motion, excess motion, fatigability, incoordination, repetitive motion, or on flare up. (e) State whether or not there is any ankylosis of the spine or any segment of the spine. (f) State whether there is any neurologic pathology due to the cervical spine disability. If so, describe the neurologic disability, the nerves affected, and the level of impairment. (g) Specifically address the impact of the cervical spine disability on the Veteran’s vocational pursuits. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel