Citation Nr: 18158270 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-36 401 DATE: December 14, 2018 ORDER Entitlement to an initial evaluation of 70 percent, but no higher, for post-traumatic stress disorder (PTSD), in partial remission and major depressive disorder is granted. REMANDED Entitlement to an initial evaluation in excess of 20 percent for right shoulder tendonitis is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, for the entire period on appeal, the Veteran’s PTSD was manifested by difficulty in maintaining effective relationships, lack of a social life, feelings of detachment and estrangement from others, problems with concentration and focus, impaired impulse control, with mood swings and angry outbursts. CONCLUSION OF LAW The criteria for an evaluation of 70 percent for PTSD have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130; Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1990 to March 1999 and from May 1999 to July 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2012 and July 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran was awarded a 50 percent evaluation for his PTSD in a November 2012 rating decision and 20 percent for his right shoulder tendonitis in a July 2016 rating decision. Entitlement to an initial evaluation of 70 percent, but no higher, for post-traumatic stress disorder (PTSD), in partial remission and major depressive disorder Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations applies, 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. The United States Court of Appeals for the Federal Circuit has held that VA “is specifically required to assess a disability ‘in relation to its history’ when making disability ratings determinations[.]” Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (citing 38 C.F.R. § 4.1 (“It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.”)). The Board, therefore, will examine the Veteran’s entire history regarding PTSD. The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.§ 1154 (a). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board can consider bias in lay evidence as well as conflicting statements and actions by the Veteran in weighing credibility. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). It is the policy of VA to administer and apply the law under a broad interpretation, consistent, however, with the facts shown in the case. Consistently, “[t]he evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.” Bastien v. Shinseki, F.3d 1301, 1306 (Fed. Cir. 2010). When there is an approximate balance of positive and negative evidence, or equipoise, regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). The Board has an obligation to provide reasons and bases supporting this decision, but there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Accordingly, the analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran’s PTSD is evaluated under Diagnostic Code 9411. Diagnostic Code 9411 provides that a 50 percent rating is warranted where 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; and 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, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as 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); and inability to establish and maintain effective relationships. The Federal Circuit has found that § 4.130 requires an ultimate factual conclusion as to a veteran’s level of impairment in “most areas” for a 70 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The maximum, 100 percent rating, is warranted when 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 are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran’s condition of similar type and degree that affect the level of occupational and social impairment. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Analysis The Board has made careful review of the record and finds that the Veteran’s PTSD more nearly approximates the criteria for a 70 percent disability rating, but no higher, for the entire period on appeal. Throughout the appeal period the Veteran has shown occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board reviewed all records of psychiatric treatment, much of which did not reveal pertinent information beyond the diagnosis. However, the June 2016 Disability Benefits Questionnaire for PTSD notes occupational and social impairment with reduced reliability and productivity. The Veteran attested to difficulty maintaining effective relationships, noting he is not close to his eight siblings, has difficulty with his wife and his marriage has issues, and that he does not have a social life. The Veteran also noted feelings of detachment and estrangement from others, as well as problems with concentration and focus. The Veteran also suffers from impaired impulse control, saying he has mood swings and a lot of irritability as well as angry outbursts, with little or no provocation. Additionally, the Veteran suffers from memory loss and panic attacks. The Veteran was reported to have symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He has an exaggerated startle response and is hypervigilant. The psychiatrist notes that the Veteran suffers from PTSD, major depressive disorder, and anxiety. The PTSD symptoms exhibited cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay testimony is competent to prove that a claimant exhibited certain lay-observable symptoms and the time that those symptoms appeared. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For benefits to be denied, “the preponderance of the evidence must be against the claim.” Id. at 54. At this time, the Board finds that there is not sufficient evidence for a 100 percent rating determination. While the Veteran is suffering from psychiatric symptoms, he has maintained some semblance of family relations, he is close to his son and has been married for 19 years. There is no evidence to indicate total occupational and social impairment. Accordingly, the Board finds that the criteria for a rating of 70 percent are met and an increased rating is warranted. REASONS FOR REMAND Entitlement to an initial evaluation in excess of 20 percent for right shoulder tendonitis is remanded The Board finds that additional development is needed prior to final adjudication of the issues on appeal. The Board finds that a new examination is needed in order to comply with the Court’s precedential decision of Correia v. McDonald, 28 Vet. App. 158 (2016). In that decision, the Court found the final sentence of 38 C.F.R. § 4.59, created a requirement that whenever possible in the cases of joint disabilities, “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” 38 C.F.R. § 4.59. The June 2016 shoulder examination does not meet these specifications. For example, the examination report does not provide range of motion findings that were obtained on active versus passive motion, or range of motion findings for the opposite undamaged joint. Additionally, it is unclear whether the Veteran is right or left hand dominant, the 2012 VA exam indicates right-handedness, while the 2016 VA exam indicates left-handedness. The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so.” Sharp v. Shulkin, 29 Vet. App. 26 (2017). In light of these decisions, the Board finds that new VA examinations should be provided addressing the Veteran’s lumbar spine degenerative disc disease and chronic right shoulder dislocation. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, a new examination is needed. The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, as well as service treatment records pertaining to the issues on appeal. 2. Upon completion of the above, the RO should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected right shoulder disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements must be included for active and passive motion, and weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. The examiner(s) must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Javed, Associate Counsel