Citation Nr: 18156033 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 17-21 266 DATE: December 6, 2018 ORDER An initial rating of 70 percent is granted since February 1, 2013, for posttraumatic stress disorder (PTSD). REMANDED The issue of an initial rating since February 1, 2013, of more than 40 percent for lumbar spine intervertebral disc syndrome (IVDS) with right lower extremity neurological impairment, currently rated as 10 percent, is remanded. The issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Since February 1, 2013, the Veteran’s PTSD has caused anxiety, nightmares, avoidance, depression, isolation, sleep impairment, impaired impulse control, intense distress at exposure to events similar to in-service trauma, markedly diminished interest in significant activities, irritability and angry outbursts, exaggerated startle response, difficulty concentrating, short-term memory impairment, hypervigilance, difficulty establishing and maintaining effective work and social relationships, difficulty maintaining effective family role functioning, marital and family difficulties, fatigue, forgetfulness, impaired impulse control, dysphoria and dissociation, feelings of detachment and estrangement, difficulty adapting to stressful situations, survivor’s guilt, emotional numbing, feelings of hopelessness and despair, difficulty remembering parts of his in-service traumatic events, chronic sleep impairment, panic attacks, and suicidal ideation. CONCLUSION OF LAW The criteria for a rating of 70 percent, since February 1, 2013, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Air Force from September 1992 to January 2013. Entitlement to an initial rating of more than 30 percent for PTSD since February 1, 2013. Disability evaluations 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 (2012); 38 C.F.R. Part 4 (2018). A 30 percent evaluation is warranted for PTSD 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation requires 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 evaluation requires 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 evaluation requires 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 himself 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 (2017). The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board observes that the Veteran has non-service-connected psychiatric disorders, in addition to his service-connected PTSD. No competent medical professional has separated the effects of the non-service-connected disorder from those associated with the service-connected disorder. Therefore, all of the Veteran’s psychiatric symptoms will be attributed to his service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that when claimant has both service connected and non-service-connected disabilities, Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where, as here, the issue involves the assignment of an initial rating for a disability following the award of service connection for that disability, the entire history of the disability must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). In June 2012, the Veteran was afforded a VA examination. He reported symptoms of anxiety, nightmares 2 to 3 times per week, avoidance of places including businesses with Middle Eastern owners, depression, isolation, and difficulty sleeping. He was taking medication to treat his PTSD symptoms. He had been married to his second spouse for 6 years and they had a good relationship. He had a good relationship with his co-workers and supervisor. The examiner indicated that the Veteran had recurrent recollections of in-service trauma, recurrent distressing dreams, feelings as if the trauma was recurring, intense distress at exposure to events similar to the trauma, avoidance of stimuli associated with the trauma, avoidance of people or places that aroused recollections of the trauma, markedly diminished interest in significant activities, difficulty falling or staying asleep, irritability or angry outbursts, exaggerated startle response, difficulty concentrating, and hypervigilance. He had no hallucinations or delusions and no suicidal or homicidal ideation. The examiner noted that he had difficulty establishing and maintaining effective work and social relationships, difficulty maintaining effective family role functioning, and interference with recreation or leisurely pursuits. VA and private treatment records dated from March 2014 to October 2017 indicate that the Veteran had symptoms of difficulty concentrating, short-term memory impairment, anxiety, isolation, avoidance of crowds, avoidance of loud noises, cognitive impairments, marital and family difficulties, anger and frustration, fatigue, forgetfulness, being overwhelmed, irritability, hyperactivity and restlessness, impaired impulse control, intrusive experiences, dysphoria and dissociation, flashbacks, nightmares, panic attacks, depression, difficulty adapting to stressful situations, sleep impairment, no longer participating in activities he once enjoyed, hypervigilance, exaggerated startle response, feelings of detachment and estrangement, survivor’s guilt, emotional numbing, feelings of hopelessness and despair, difficulty remembering parts of his in-service traumatic events, required prescription medication to manage his symptoms, and had suicidal ideation. He was in school until he graduated in December 2015. In November 2016, his spouse reported that, due to his depression, she was concerned about his safety when he was alone. In July 2018, the Veteran was afforded a VA examination. He and his spouse had been married for 12 years and had a good relationship. He reported that he did not have a good relationship with his older children. He preferred to be alone and spent his free time outdoors or watching television. He reported that he had not worked since he retired from the Air Force but that he had completed a bachelor’s degree in psychology. On examination he had symptoms of recurrent, involuntary, and intrusive distressing memories of in-service traumatic events; recurrent distressing dreams; intense or prolonged psychological distress and marked physiological reactions to internal or external cues that symbolized or resembled an aspect of the traumatic events; avoidance of distressing memories, thoughts, or feelings about or closely associated with the traumatic events; avoidance of external reminders that aroused distressing memories, thoughts, or feelings about, or closely associated with, the traumatic events; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; irritable behavior and angry outbursts; hypervigilance; exaggerated startle response; problems with concentration; chronic sleep impairment; depressed mood; anxiety; panic attacks that occurred weekly or less often; and difficulty in establishing and maintaining effective work and social relationships. His anxiety would rise when he encountered women in burqas, he rarely left his property, and he would only go to the store in the middle of the night when few people would be there. He had suicidal ideation. Since February 1, 2013, the Veteran’s PTSD has caused anxiety, nightmares, avoidance, depression, isolation, sleep impairment, impaired impulse control, intense distress at exposure to events similar to in-service trauma, markedly diminished interest in significant activities, irritability and angry outbursts, exaggerated startle response, difficulty concentrating, short-term memory impairment, hypervigilance, difficulty establishing and maintaining effective work and social relationships, difficulty maintaining effective family role functioning, marital and family difficulties, fatigue, forgetfulness, impaired impulse control, dysphoria and dissociation, feelings of detachment and estrangement, difficulty adapting to stressful situations, survivor’s guilt, emotional numbing, feelings of hopelessness and despair, difficulty remembering parts of his in-service traumatic events, chronic sleep impairment, panic attacks, and suicidal ideation. Given these facts, the Board finds that the Veteran’s symptoms most closely approximate a 70 percent rating during the entire period on appeal. 38 C.F.R. § 4.7. The Veteran is not entitled to a 100 percent rating because he maintained a good relationship with spouse, had no hallucinations or delusions, and was able to complete a bachelor’s degree. REASONS FOR REMAND 1. The issue of an initial rating since February 1, 2013, of more than 40 percent for lumbar spine IVDS with right lower extremity neurological impairment, currently rated as 10 percent, is remanded. A July 2012 VA examination report indicates that the Veteran had right lower extremity nerve impairment caused by his lumbar spine disorder. It is unclear, however, which nerve(s) in the right lower extremity are affected. The examination report states that the “most likely” nerves are the femoral nerve, the external cutaneous nerve, and the sciatic nerve. In order to properly rate the severity of the Veteran’s disability, an examination is necessary to determine exactly which nerves are affected by his IVDS. Additionally, many VA and private treatment records state that the Veteran has left lower extremity radiculopathy as well. Remand is necessary to afford the Veteran a comprehensive nerve examination to determine the extent of the neurological impairment caused by the IVDS. 2. The issue of entitlement to TDIU is remanded. Entitlement to TDIU is available when the schedular rating is less than total. Entitlement to TDIU should be reassessed following the implementation of the grant above of a 70 percent rating for PTSD. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA lumbar spine examination and a VA nerves examination to obtain an opinion as to the current nature of lumbar spine IVDS and all associated neurological impairments. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should clarify exactly which right and left lower extremity nerve(s) are impaired due to the lumbar spine IVDS. 2. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel