Citation Nr: 18158426 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-40 643A DATE: December 14, 2018 ORDER Entitlement to a rating in excess of 50 percent prior to July 27, 2016, and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) is denied. Entitlement to an earlier effective date, prior to April 19, 2012, for the grant of service connection for PTSD, is denied. REMANDED Entitlement to service connection for right shoulder condition, to include due to service connected PTSD and/or Gulf War environmental hazards, is remanded. Entitlement to service connection for left knee condition, to include secondary to service connected PTSD and/or Gulf War environmental hazards, is remanded. Entitlement to service connection for left ankle condition, to include due to service connected PTSD and/or due to Gulf War environmental hazards, is remanded. FINDINGS OF FACT 1. Prior to July 27, 2016, the Veteran’s PTSD has been manifested by no more than occupational and social impairment with reduced reliability and productivity due to depressed mood, anxiety, suspiciousness, chronic sleep impairment, and social withdraw. 2. Throughout the entire period on appeal, the Veteran’s PTSD has not been manifested by total occupational and social impairment. 3. The Veteran’s PTSD does not warrant an effective date prior to April 19, 2012, for the grant of service connection. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD prior to July 27, 2016, have not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130; Diagnostic Code (DC) 9411 (2017). 2. The criteria for a rating in excess of 70 percent for PTSD for the period from July 27, 2016, and thereafter have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130; DC 9411 (2017). 3. The criteria for an earlier effective date prior to April 19, 2012 for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.105(a), 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1983 to March 1985 and from October 1988 to January 1992. 1. Entitlement to a rating in excess of 50 percent prior to July 27, 2016 and in excess of 70 percent thereafter for PTSD Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, 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 the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's PTSD, unspecified depressive disorder and alcohol use disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Ratings are assigned according to the manifestation of particular symptoms. A 50 percent is assigned for 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 establishing effective work and social relationships. A 70 percent is assigned for 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); inability to establish and maintain effective relationships. A 100 Percent is assigned for 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. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. The Veteran was granted service connection for PTSD effective April 19, 2012 at 50 percent disabling. In a rating decision dated August 2016, the Veteran received an increase to 70 percent disabling for PTSD effective July 27, 2016. The Veteran contends he is entitled to a rating in excess of 50 percent prior to July 27, 2016, and in excess of 70 percent thereafter. For the following reasons, the Board finds an increased rating is not warranted. Prior to July 27, 2016 In order to obtain the next higher rating of 70 percent, the Veteran’s PTSD must be productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to his PTSD symptoms. The Veteran attended a VA examination in July 2012 and received a diagnosis of chronic mild to moderate PTSD. Occupationally, the Veteran reported current employment and socially he reported having a couple of friends but none that are close. The examination report noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks weekly or less, chronic sleep impairment, mild memory loss, and flattened affect. The examiner opined that the Veteran had an occupational and social impairment due to mild or transient symptoms. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In June 2014, the Veteran provided a statement reporting that he is unable to deal with society and must work graveyard shifts to avoid people. He further stated that he requires prescription medication for his PTSD and is unable to sleep without nightmares unless he consumes at least a six pack of beer. The Board finds the Veteran is competent to describe his observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Based on the evidence of record, the Veteran’s overall symptomology associated with PTSD is productive of, at most, occupational and social impairment with reduced reliability and productivity. The 2012 VA examiner concluded that the Veteran’s symptoms were mild and transient, noting symptoms that are more consistent with the criteria contemplated by a 30 percent rating. However, the Veteran’s June 2014 statement indicates additional difficulty with occupational and social relationships. As such, when considering all the evidence of record, the Board finds the Veteran’s symptoms, at most, warrant a 50 percent rating. From July 27, 2016 The next higher rating of 70 percent, not only requires the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas, including work, school, family relations, judgment, thinking or mood. See 38 C.F.R. § 4.130; Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran attended another VA examination in July 2016 and received a diagnosis of severe PTSD, unspecified depressive disorder and alcohol use disorder. The report noted additional symptoms of impairment of short and long-term memory, circumstantial, circumlocutory or stereotyped speech, impaired judgment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, impaired impulse control, and spatial disorientation. At the examination, the Veteran was orientated, hyper-alert, and tearful when describing stressors. Socially, the Veteran is married to a loving wife of three years that he trusts, he also has contact with his two brothers and a friend from active service. However, the Veteran reported no contact with his children from his first marriage and discomfort with sitting in the first row of church. Occupationally, the Veteran stated that he was fired from a job two years ago for fighting with a coworker but is currently employed but his supervisor complains that he is grumpy and smells of alcohol. Review of the medical records reflect that the Veteran suffers from service related nightmares three times a week; however, he consistently denies suicidal and homicidal ideations. When considering the frequency, severity, and duration of the Veteran’s symptoms during the period at issue, the Board finds that the Veteran’s symptoms most closely match the criteria for a 70 percent rating from July 27, 2016 and thereafter. Socially, the record reflects that the Veteran has limited relationships and prefers isolation. However, he is able to maintain relationships with his spouse, brothers, and at least one friend and attend church. While this evidence suggests the Veteran has social deficiencies, it does not rise to the level of total impairment. Occupationally, the Veteran is able to maintain employment despite some difficulties. The Veteran reported being terminated from previous employment due to conflict with a coworker; however, the evidence reflects current employment. As such, a total occupational impairment is not shown. Moreover, the July 2016 VA examiner concluded that the Veteran’s symptomology results in an occupational and social impairment with reduced reliability and productivity, which is consistent with the criteria contemplated by a 50 percent rating. The evidence is insufficient to establish a total social and occupational impairment. Therefore, at most, the Veteran warrants no more than a 70 percent rating for PTSD. 2. Earlier Effective Date for the Grant of Service Connection for PTSD Unless specifically provided otherwise, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400(b)(2)(i) (2017). The terms "claim" and "application" mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p) (2017). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r) (2017). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a) (2017). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or a person acting as next friend of the claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). The Board notes that, on March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. In Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009), the United States Court of Appeals for Veterans Claims (Court) held that an informal claim must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See also Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate original claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). In this case, the Veteran’s effective date for his rating of 50 percent disabling for PTSD is April 19, 2012, which is the date of claim for the grant of service connection. Per 38 C.F.R. § 3.400(b)(2)(i), the effective date is the receipt of claim or date entitlement arose, whichever is the later. While the Veteran may have received a diagnosis of PTSD prior to April 19, 2012, the record does not reflect an earlier claim for service connection for PTSD. As such, the Veteran’s effective date of April 19, 2012, is appropriate as it is the later. Thus, the Veteran’s claim for entitlement to an earlier effective date is denied. REASONS FOR REMAND 1. Right Shoulder Condition, Left Knee Condition, and Left Ankle Condition. The Veteran contends his right shoulder, left knee, and left ankle conditions are due to or aggravated by his service connected PTSD and/or due to Gulf War environmental hazards. The evidence establishes that the Veteran is a Gulf War Veteran; thus, it necessary to consider whether service connection is warranted under the provisions of 38 C.F.R. § 3.317. The Veteran attended a VA examination for his bilateral ankle condition in July 2013 and a Gulf War VA examination in August 2016. The Gulf War examination concluded that the Veteran has no undiagnosed illnesses; however, the examination report does not reflect consideration of the Veteran’s left ankle complaints. Review of the medical evidence of record does not establish a diagnosis for the Veteran’s left ankle condition. Accordingly, the Board finds that a remand for another Gulf War examination is necessary in order to fully and fairly assess the merits of the Veteran’s claim. 38 C.F.R. § 3.159 (c)(4). Additionally, the Veteran attended VA examinations for his shoulder and knee conditions in January 2013. The examiner noted diagnoses of arthritis of the right AC shoulder joint secondary to aging and osteoarthritis of the left knee secondary to aging but did not provide a medical opinion. A mere conclusion without an underlying rationale is of no probative value. Miller v. West, 11 Vet. App. 345 (1998). Furthermore, as the Veteran is alleging that his right shoulder and left knee conditions are secondary to his service connected disability, an opinion is required as to whether the Veteran’s right shoulder arthritis or left knee osteoarthritis is aggravated by his service connected PTSD. The Board also notes that, while the Veteran does not warrant service connection under the Gulf War presumption as he has diagnoses for his right shoulder and left knee conditions, the Veteran is not precluded from establishing service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 U.S.C. § 1113 (b). As such, a remand is necessary to obtain medical opinions regarding the nature and etiology of the Veteran’s right shoulder arthritis and left knee osteoarthritis. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38C.F.R. § 3.159(e). 2. Schedule the Veteran for a Gulf War examination by an appropriate clinician to determine the nature and etiology of any left ankle conditions. The examiner must review the claims file to include a copy of this remand. Current VA Gulf War Examination Guidelines must be followed. All indicated tests should be performed, and all findings reported in detail. The VA examiner's opinion should address the following: (a) Whether the Veteran's complaints related to his left ankle are attributable to a known clinical diagnosis, or whether the reported problem is a manifestation of an undiagnosed illness. (b) If the left ankle condition is determined to be attributable to a known clinical diagnosis, state whether it is at least as likely as not (50 percent probability or greater) that the condition had its clinical onset during active service or is related to any in-service disease, event, or injury, to include Gulf War environmental hazards. (c) If the left ankle condition is determined to be attributable to a known clinical diagnosis, state whether it is at least as likely as not (i.e., probability of 50 percent or higher) proximately due to or the result of the Veteran’s service-connected PTSD? If the answer to (c) is negative, state whether it is at least as likely as not that the left ankle condition is aggravated (i.e., permanently or temporarily worsened) by the service-connected PTSD? If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term “aggravation” means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examiner should elicit a full history from the Veteran and consider and address any lay statements of record. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. Additionally, in support of his claim the Veteran submitted articles suggesting a link between PTSD and physical health, “The Prevalence of Post-Traumatic Stress Disorder in Chronic Pain Patients” and “Posttraumatic Stress Disorder and Physical Illness: Results from Clinical and Epidemiological Studies.” See Correspondence January 2013. The examiner is to review and address the relevance these articles. Such consideration should be reflected within the rationale. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Obtain an addendum medical opinion for the Veteran’s right shoulder arthritis and left knee osteoarthritis from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file, including a copy of this remand. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s right shoulder arthritis and/or left knee osteoarthritis is related to his active service or is caused by or aggravated by military service, to include exposure to Gulf War environmental hazards. (b) Is it at least as likely as not (i.e., probability of 50 percent or higher) that right shoulder arthritis and/or left knee osteoarthritis is proximately due to or the result of the Veteran’s service-connected PTSD? (c) If the answer to (b) is negative, is it at least as likely as not that the right shoulder arthritis and/or left knee osteoarthritis is aggravated (i.e., permanently or temporarily worsened) by the service-connected PTSD? If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term “aggravation” means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examiner should elicit a full history from the Veteran and consider and address any lay statements of record. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. Additionally, in support of his claim, the Veteran submitted articles suggesting a link between PTSD and physical health, “The Prevalence of Post-Traumatic Stress Disorder in Chronic Pain Patients” and “Posttraumatic Stress Disorder and Physical Illness: Results from Clinical and Epidemiological Studies.” See Correspondence January 2013. The examiner is to review and discuss the relevance of these articles. Such consideration should be reflected within the rationale. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Finally, readjudicate the appeal. If the benefits sought on appeal remain denied, issue a supplemental statement of the case and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel