Citation Nr: 18156970 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-57 778 DATE: December 11, 2018 ORDER A disability rating in excess of 50 percent prior to February 18, 2014 for PTSD is granted. REMANDED Entitlement to service connection for a right hip disability is remanded. FINDING OF FACT Prior to February 18, 2014, the Veteran’s PTSD was manifested by occupational and social impairment with deficiencies in most areas (but was not manifested by total social and occupational impairment). CONCLUSION OF LAW Prior to February 18, 2014 the criteria for a 70 percent rating (but not higher) for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1995 to June 1999 and from December 2003 to March 2005. The matter is before the Board of Veterans Appeals (Board) on appeal from September 2016 and August 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. Evaluation in excess of 50 percent prior to February 18, 2014 for PTSD. The Veteran asserts that his service-connected PTSD was more severe than the 50 percent rating that was assigned prior to February 18, 2014. Legal Criteria A 50 percent rating is warranted for PTSD where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as, for example: 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 such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating for PTSD contemplates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. This may be due to such symptoms as, for example: suicidal ideation; 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating contemplates total occupational and social impairment. Id. The symptoms listed in the rating criteria as possible examples of such impairment are: 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. Id. Factual Background In a June 2010 VA PTSD evaluation, the examiner noted that the Veteran had a PTSD diagnosis that conformed to the DSM-IV criteria. The examiner stated that the Veteran displayed severe symptoms including pessimism, guilty feelings, punishment feelings, self-criticalness, crying, agitation, irritability and tiredness or fatigue. The examiner also noted that the Veteran exhibited observable symptoms of neglecting his physical appearance, lethargy and blunted affect. The Veteran also was found to have exhibited moderate occupational impairment related to his PTSD symptoms, causing him to be irritable, anxious, tense, apathetic, socially withdrawn and impetuous. The examiner also found that the Veteran had reduced reliability and productivity due to his depression. The examiner indicated that the Veteran had thoughts of suicide but had no current plan or intent to harm himself. The Veteran reported impaired impulse control and unprovoked irritability with outbursts resulting in the destruction of property. The examiner further noted that the Veteran’s exposure to trauma during military service had led to difficulty adapting to stressful circumstances. The Veteran also described significant difficulty in establishing and maintaining effective relationships that might have been associated with social withdrawal, irritability and social distancing. The Veteran had severe difficulty with several activities associated with daily living such as grooming and shopping. The Veteran further manifested a lack of interest in engaging in recreational activities he used to enjoy, including spending time with his children. The Veteran stated that he often slept 10 to 11 hours a day and preferred to be asleep when his wife and children were home, to avoid altercations. During a January 2014 VA PTSD evaluation, the Veteran recounted a physical altercation with his father-in-law in April 2013. In his November 2016 Substantive Appeal, the Veteran notes that his mental condition had continued to deteriorate since that physical altercation, he reported having more active suicidal thoughts in February 2014. Since the altercation with his father-in-law, the Veteran had been living in his basement of his home, isolated from his wife and children. Analysis With consideration of the entire record, the Board finds that the evidence more nearly approximates the criteria for the next higher disability rating of 70 percent prior to February 18, 2014. In that regard, the evidence shows that the Veteran experienced: depression; irritable affect; sleep impairment; irritability with physical outbursts; short temper; social isolation with few, if any, friends; suicidal ideation; flattened affect; and panic attacks. Although not all of the criteria for a 70 percent rating have been shown, the criteria are simply guidelines for determining whether the Veteran meets the dominant criteria. The dominant criteria for a 70 percent evaluation are occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. In this case, the Board finds that the evidence of record demonstrates that this level of functional impairment was met prior to February 18, 2014. However, the criteria for a 100 percent rating have not been demonstrated. Although the Veteran’s PTSD causes severe impairment (which is, indeed, contemplated by the 70 percent rating that is being awarded), the evidence does not indicate that he experiences the type of gross impairment described in the rating schedule as total social and occupational impairment. Accordingly, based on all the evidence of record, the manifestations of the Veteran’s PTSD meet the criteria contemplated for a 70 percent evaluation prior to February 18, 2014. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability is remanded. The Veteran contends that he has a right hip disability that is related to his service. At a June 2014 VA examination, the Veteran reported right hip pain but the examiner did not find a diagnosable hip condition. However, recent case law has clarified that pain alone (that is, without an associated diagnosed medical condition) may constitute a disability for VA compensation purposes if it causes functional impairment and “diminishes the body’s ability to function.” Saunders v. Wilkie, 2017-1466, slip op. at 13, 21 (Fed. Cir. Apr. 3, 2018) (overruling Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999)). Accordingly, the Veteran must be afforded a VA examination to determine whether his right hip pain results in functional impairment. Further, the examiner remarked that the Veteran’s right hip pain may be the result of a herniated disc caused by his service-connected vertebral compression fractures at T-10 and T-11. The examiner stated, “If there is a disc herniation at T11/T12 then it would be at least as likely as not a secondary cause of his vertebral fractures that were incurred in service. I cannot verify this however due to his inability to get an MRI and would be resorting to mere speculation without a T spine MRI.” If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, the report must be returned as inadequate. 38 C.F.R. § 4.2 (2008). Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to assess the nature and cause of any right hip disability. The claims file, and a copy of this remand, shall be made available to the examiner for review in conjunction with the examination. Based on review of the record and interview and examination of the Veteran, the examiner should provide an opinion that responds to the following: (a.) Identify any right hip disabilities by diagnosis(es) or, if the Veteran presents with no diagnosable hip disabilities, identify any functional impairments caused by the Veteran’s right hip pain. (b.) For each right hip disability OR functional impairment caused by pain diagnosed, please opine as to whether such is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) related to the Veteran’s service. (c.) If the examiner concludes that any diagnosed right hip disability or functional impairments caused by pain is NOT related to active service, please opine as to whether the right hip disability was CAUSED or AGGRAVATED by the Veteran’s service-connected vertebral compression fractures at T-10 and T-11 (aggravation means that the disability has progressed beyond its natural course). In forming the opinion, the examiner must consider and discuss the June 2014 VA examination in which the examiner speculated that the Veteran’s right hip pain may be due to a herniated disc that is related to the Veteran’s service-connected vertebral compression fractures at T-10 and T-11. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McKone, Law Clerk