Citation Nr: 18154859 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-51 797 DATE: November 30, 2018 ORDER Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected medial collateral ligament tear, right ankle, is denied. FINDING OF FACT The Veteran’s PTSD does not more nearly more nearly approximate occupational and social impairment with reduced reliability and productivity, but is manifested by symptoms such as chronic sleep impairment, depression, anxiety, irritability, nightmares, being on guard, and having concentration difficulties. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2005 to June 2005, August 2006 to November 2007, July 2009 to August 2010, and from June 2012 to June 2013. Entitlement to an initial disability rating in excess of 30 percent for service-connected PTSD. Part of VA’s duty to assist the Veteran is to provide adequate examinations. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). Here, the Veteran asserts his June 2015 examination for PTSD was inadequate, because the examiner was rushing and not asking enough questions. See November 2015 notice of disagreement. However, the Board finds that the examination is adequate. Within the examination report, it is noted that three psychological tests were administered. Furthermore, a full interview and review of the file are also noted. Further, the symptoms as reported in the examination are essentially similar to those reported in the VA treatment records from the year prior. The Board finds no indication within the record, aside from the Veteran’s assertions, that the June 2015 VA examination was rushed or otherwise inadequate. The examination report appears thorough and complete and provides adequate information to consider the applicable rating criteria. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Neither the Veteran nor his representative has alleged any other deficiency with respect to VA's duties to notify or assist in connection with the instant appeal. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, the Board finds that the duty to assist has been met. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where an appeal is based on an initial rating for a disability, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran has been evaluated under 38 C.F.R. § 4.130, DC 9411. Under this code, a 30 percent evaluation contemplates 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, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation 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 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. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; 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 worklike setting); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. However, the symptoms recited in the criteria in the Schedule for evaluating mental disorders 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, 442 (2002). “[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d at 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126. In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. The Veteran filed a claim for service connection in May 2014. An April 2014 VA medical record shows the Veteran had a positive PTSD screen and reported issues of increased irritability, sleep disturbances, and family stress. The Veteran also reported having nightmares about stressful events from service and thinking about those events when he did not want to; he also reported trying to avoid situations that reminded him of stressful events and being constantly on guard, watchful, and easily startled. Other April 2014 VA records indicate the Veteran lived in one city to be close to his family of origin and commuted to another city for work, often staying with friends to avoid a long commute home. In another April 2014 VA record the Veteran underwent an initial VA mental health evaluation. The Veteran reported that stressful events from service were impacting his functioning, especially in regard to sleep and concentration. Upon mental status examination, the Veteran was alert, oriented, and attentive; his appearance was cooperative and reasonable, with appropriate grooming; his speech was normal in rate and in rhythm; his mood was euthymic and his affect was congruent; his thought process was normal and coherent with no unusual thought content; he had no suicidal or violent ideation; his insight, judgment, memory, and fund of knowledge appeared to be intact. In another April 2014 VA record, his mental status examination showed he was alert, attentive, and oriented, casually dressed and appropriately groomed. His mood was euthymic with normal ranging affect, and his his speech rate, rhythm, and tone were within normal limits. The Veteran’s thought process was linear and goal directed, without evidence of audio or visual hallucinations – there were no references to suicidal or homicidal ideation or other emergent concerns. In a May 2014 VA record, he reported having sleep problems since returning from service and a flashback one month prior. He stated that he would wake up during the night fully alert and sometimes struggled with being tired at work, but he denied significant low energy. He reported some problems with his boss. The Veteran also stated having vivid military-related dreams several times a month. With regards to concentration, the Veteran reported having difficulties with reading and absorbing written materials since service, preferring written materials that were short, focused, and of strong interest, but that he could generally attend when listening to information. Upon mental status examination, the Veteran was alert, attentive, cooperative and reasonable, with appropriate grooming. His insight, judgment, memory, and fund of knowledge appeared intact. He was fully oriented and was casually dressed and appropriately groomed. There was no evidence of audio or visual hallucinations. In another May 2014 VA record, he reported that his stated goals for treatment were readjusting to a new work schedule (e.g., improving sleep, working on being able to relax, and improving concentration). The Veteran specifically endorsed wanting to improve sleep, working on being able to relax, and improving concentration. Upon mental status examination, the Veteran’s mood was noted as euthymic with a bright affect. The examiner found there were no references to suicidal or homicidal ideations. All other mental status indicators were within normal limits. In a July 2014 VA treatment record, Dr. JS noted that a review of the prior four meetings with the Veteran indicated that, despite the Veteran’s concerns regarding sleeping and concentrating, he described functioning quite well and did not appear to have any specific issues that needed to be addressed with individual therapy. It was noted that that the Veteran’s exposure to stressful and traumatic events in service were mildly impacting his current functioning. A July 2014 telephone contact note indicated the Veteran expressed an interest in returning to school and was future-oriented and goal-directed. In June 2015, the Veteran underwent a VA examination for PTSD. The Veteran reported providing financial support to his family and working the overnight shift as a security guard. The Veteran denied prior psychiatric hospitalizations or currently taking psychotropic medications. The examiner noted that the Veteran was alert and oriented, with logical and goal oriented thinking. He was casually dressed, neatly groomed, polite, and cooperative. However, the Veteran’s mood was anxious and dysphoric. His affect was also constricted in range. He exhibited no signs of hallucinations or delusions and he denied homicidal or suicidal ideations. There was normal speech. The examiner reported that the Veteran’s PTSD caused symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The examiner opined that these symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board finds that a rating in excess of 30 percent is not warranted as the preponderance of the evidence is against a finding of occupational and social impairment with reduced reliability and productivity. The Veteran did report mood deficiency, and the examiner found there was depression and anxiety. Notably, however, the treatment records and examination showed normal speech, intact or good judgment, logical and goal-directed thought processes. Furthermore, the Veteran did not exhibit symptoms such as a flattened affect, panic attacks, difficulty in understanding complex commands, or impairment of memory. The evidence of record also does not demonstrate difficulty in establishing and maintaining effective work and social relationships. Although the treatment records noted family stress, it was noted that this was due to financial and mental health stressors of his parents and aunt. He chose to live in the same town as his family. The Veteran did report some difficulty with his boss, but it did not appear to rise to the level of difficulty maintaining an effective relationship. Moreover, the June 2015 VA examiner assessed the Veteran’s PTSD as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is the criteria for a 30 percent disability rating. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. Finally, the Board finds that the Veteran’s other symptoms are not of similar severity, frequency, and duration of those required for the 50 percent evaluation. See Vazquez-Claudio, 713 F.3d 112. The Veteran’s symptoms of depression, anxiety, chronic sleep impairment, suspiciousness, irritability, nightmares, being on guard, and having concentration difficulties, do not cause reduced reliability and productivity and are not of the severity or frequency of those noted in the 50 percent evaluation. In sum, the Veteran’s symptoms do not more nearly approximate the criteria for a higher disability rating. The criteria for a 30 percent rating appear to more accurately describe the Veteran’s level of social and occupational impairment. The Board has considered whether staged ratings are appropriate for the Veteran’s service-connected PTSD. See Hart, supra. However, the Board finds that his symptomatology has been stable during the entire appeal period; therefore, assigning further staged ratings for such disability is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to service connection for a left ankle disorder, to include as secondary to the service-connected right ankle medial collateral ligament tear is remanded Remand is required for an additional examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA adjudicators are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Pain alone may constitute a disability, even without an identifiable underlying pathology, if there is functional impairment which is “the inability of the body or a constituent part of it to function under the ordinary conditions of daily life, including employment.” Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Here, the evidence of record is in conflict regarding whether there is left ankle pain that results in functional impairment under the ordinary conditions of life, to include employment. A June 2015 VA examination was provided. The examiner provided a positive nexus opinion based on a finding of periodic pain. The examiner also noted that the ankle conditions impact his ability to perform occupational tasks, but did not indicate if this was only the right or left ankle. Earlier in the report, the examiner found there was no evidence of pain. Thereafter, the Veteran has asserted that his left ankle disorder has worsened since his June 2015 VA examination. Thus, the VA examination report isn’t clear regarding whether there is pain that qualifies as a disability and may no longer be sufficient upon which to base a decision, if any pain has indeed worsened. Remand is rhus required. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any left ankle disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must determine if there is a left ankle disability or left ankle pain that causes functional impairment under the ordinary conditions of daily life, including employment. Second, if there is a left ankle disability or left ankle pain that causes functional impairment, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disability or impairment is caused or aggravated by the service-connected right ankle disorder. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Martinez, Associate Counsel