Citation Nr: 20009785 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 12-30 697 DATE: February 5, 2020 ORDER Entitlement to an initial rating in excess of 50 percent for the Veteran’s service-connected posttraumatic stress disorder (PTSD) from July 13, 2009 to September 18, 2017 is denied. Entitlement to a rating of 70 percent, but no higher for the Veteran’s service-connected PTSD from September 18, 2017 to July 18, 2019 is granted. Entitlement to a rating in excess of 70 percent for the Veteran’s service-connected PTSD from July 18, 2019 is denied. REMANDED Entitlement to an increased rating for 20 percent for service-connected osteoarthritis of the bilateral knees is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. Prior to September 18, 2017, the Veteran’s PTSD resulted in symptoms productive of occupational and social impairment with reduced reliability and productivity; however, occupational and social impairment with deficiencies in most areas was not found. 2. From September 18, 2017 to July 18, 2019, the Veteran’s PTSD resulted in symptoms productive of occupational and social impairment with deficiencies in most areas. 3. From September 18, 2017, total occupational and social impairment has not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD from July 13, 2009 to September 18, 2017 have not been met. 38 U.S.C. § 1115; 38 C.F.R. § 4.130, DC 9411. 2. The criteria for a higher rating of 70 percent for PTSD from September 18, 2017 to July 18, 2019 have been met. 38 U.S.C. § 1115; 38 C.F.R. § 4.130, DC 9411. 3. The criteria for a rating in excess of 70 percent for PTSD from September 18, 2017 have not been met. 38 U.S.C. § 1115; 38 C.F.R. § 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1989 to November 1993 and from October 2001 to April 2002, with additional service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) from April 2011 and October 2013 rating decisions by the Regional Office (RO) of Veterans Affairs (VA). The April 2011 rating decision granted service connection for PTSD and assigned a rating of 10 percent effective July 13, 2009. The October 2013 rating decision continued the assignment of a 20 percent rating for bilateral knee disability, continued the previous denial for service connection for bilateral hearing loss, and denied service connection for tinnitus. In March 2015, the Board found new and material evidence existed to reopen the claim for bilateral hearing loss. The issue of service connection for bilateral hearing loss and the remaining claimed were remanded. An April 2016 rating decision assigned a 50 percent rating for PTSD, effective from May 20, 2015. The Board again remanded all the claims in June 2019. An August 2019 rating decision assigned an effective date of July 13, 2009 for the award of a 50 percent rating for PTSD and assigned a 70 percent rating for PTSD from July 18, 2019. Increased Rating for PTSD I. Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating 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 percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). When the appeal arises from an initial assigned rating consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fender v. West, 12 Vet. App. 119 (1999). Consistent with the facts found, the rating may be higher or lower for periods of the time under review on appeal, that is, the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999). Under Diagnostic Code 9411, a 30 percent rating is assigned when a veteran's PTSD causes 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 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; and, difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is prescribed when there is evidence of 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. Id. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. II. Analysis and Conclusion 1. Entitlement to an initial rating in excess of 50 percent for the Veteran’s service-connected PTSD from July 13, 2009 to September 18, 2017 is denied. The Veteran contends that the initial symptoms of his PTSD were moderate and have significantly worsened overtime. See October 2012 Form 9. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. His symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. VA and private treatment records, the October 2010 VA examination (VAX), the May 2015 VAX, and the Veteran’s lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, chronic sleep impairment), and symptoms associated with a 50 percent rating (disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships), and symptoms associated with a 70 percent rating (irritability and outburst of anger). He also had symptoms that are not listed with a specific rating, such as hyperviligence, exaggerated startled responses, stress, nightmares, and difficulty with concentration. The Veteran has consistently denied suicidal or homicidal ideation. See October 2010 VAX and See May 2015 VAX. During the October 2010 VAX, the Veteran stated his life was fairly normal. See October 2010 VAX. He reported having a close number of friends mostly from the military and some friends from work. He described normal social activities with these friends. He stated he had a fiancé based on a long-term romantic relationship. He added that the relationship he had with his child as great. The Veteran reported he was attending Oakland community college for business administration and being fully employed. He indicated that he enjoyed traveling. Remote, recent, and immediate memory were normal. Panic attacks were not reported. Suicidal and homicide ideation was not reported. The Veteran reported irritability or anger outburst, but his symptoms were reported as moderate and not constant. The Veteran had some impairment in concentration. The Veteran reported periodic difficulties with sleep. In May 2013, the Veteran reported working for [REDACTED] as a [REDACTED] and has maintained that employment since at least November 2000. See November 2000 Ann Arbor VAMC and May 2013 Counseling records. In the May 2015 VAX, the examiner found occupational and social impairment with reduced reliability and productivity. See May 2015 VAX. For VA rating purposes symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported living with his girlfriend and had contact with his mother and stepfather. The Veteran again reported working for [REDACTED]. See May 2015 VAX. In May 2013, the Veteran was looking to return to school and enrolled at Oakland Community College. See May 2013 Counseling records and August 2016 VA Enrollment Certification. In December 2016, the Veteran reported being employed with [REDACTED] as a [REDACTED]. See December 2016 VAMC. In June 2017, the Veteran reported living with his wife. See June 2017 Detroit VAMC. In June 2017, the Veteran reported working as an administrator. See June 2017 Detroit VAMC. Additionally, the Veteran’s VA examination’s in October 2010 and May 2015 are consistent with record and afforded high probative weight. Based on the foregoing, the Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. Mental status examinations, VA and private treatment records, and the Veteran’s lay statements indicate that the Veteran had occupational and social impairment with reduced reliability and productivity. While the Veteran did experience symptoms contemplated by a 70 percent rating, irritability and anger outburst, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. Irritability and anger outburst expressed by the Veteran were short in duration, were not reported continuously and did not have a significant impact on his occupational and social functioning. He enjoyed multiple positive and fulfilling personal relationships. He attended to school to advance his education and worked consistently from November 2000 to at least June 2017 with no identified disciplinary problems. His psychological treatment records show he was generally performing well. 2. Entitlement to a rating of 70 percent for PTSD from September 18, 2017 to July 18, 2019 is granted. 3. Entitlement to a rating in excess of 70 percent for PTSD is denied. The Board finds that based on the severity, frequency, and duration of the Veteran’s symptoms he is entitled to a 70 percent rating from September 18, 2017. The Veteran is separately service connected for migraine headaches, which are rated at 50 percent and fibromyalgia, which is rated at 40 percent. He was also diagnosed as having the residuals of traumatic brain injury (TBI). A VA examiner was unable to tell what psychiatric symptoms are related to these disabilities and his PTSD. See September 2017 VAX. Accordingly, while service connection for a TBI has been denied, the Veteran psychiatric symptoms will be evaluated in their totality. VA and private treatment records, the July 2019 VAX, and the Veteran’s lay statements show the Veteran’s PTSD was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, suspiciousness, and chronic sleep impairment), and symptoms associated with a 50 percent rating (panic attacks more than once a week, impairment of short-term and long-term memory, flattened affect, and disturbances in mood and motivation such as mood swings), and symptoms associated with a 70 percent rating (difficulty in adapting to stressful circumstances including work or a work like setting, spatial disorientation, and impaired judgment). The Veteran also reported symptoms of exaggerated started response, nightmares, vigilant, flashbacks, difficulty with concentration, avoidance behavior, dizziness, and headaches. Symptoms associated with a 100 percent rating were found in the September 2017 VAX (gross impairment in thought processes and communication, disoriented to time or place, and gross impairment in thought processes or communication). The July 2019 VAX found intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. However, these symptoms are outliers and not representative of the Veteran’s entire disability picture. In July 2017, the Veteran was afforded multiple examinations in which he was able to describe his medical history and symptoms. See July 2017 VAX. In July 2017, the Veteran reported working as an administrative assistant. See July 2017 VAMC. In August 2017, the Veteran was able to verbalize the pain in his thumb and request a work excuse. See August 2017 VAMC. There is no indication in the record that the Veteran is no longer working. In a September 2017 VAX for TBI, the residuals reported were headaches, dizziness, memory loss, decreased concentration, mood swings, and depression, deficits in memory/concentration/attention/executive functioning, impairment judgement, inappropriate social interaction most of the time, disorientation (person, time, place, and situation), moderately decreased motor activity, visual spatial disorientation, subjective symptoms (i.e., headaches, dizziness, speech, and memory), and inability to communicate either by spoken language, written language, or both, at least half of the time, but not all the time, or comprehend spoken language, written, language, or both, at least half of the time but not all the time. See September 2017 VAX. The Veteran reported not socializing with people. The Veteran reported bad mood swings. In October 2017, while meeting with a staff physician the Veteran denied any barriers to learning and the physician was able to discuss the Veteran’s goals using shared decision making. See October 2017 VAMC. The Veteran’s level of understanding was good, and no communication barriers were found. In August 2018, the Veteran’s level of understanding was good and based on verbal conversation. See August 2018 VAMC. The only cognitive barrier to learning was some memory loss. Id. In June 2018, while meeting a Nurse Practitioner the Veteran requested a work excuse, was able to verbalize himself and reported his pain level. See June 2018 VAMC. In January 2019, while meeting with a Nurse the Veteran denied any barriers to learning. See January 2019 VAMC. In June 2019, while meeting with a nurse the Veteran’s level of understanding was good and Veteran was found to have no barriers to learning. See June 2019 VAMC. A VAX was conducted in July 2019. The July 2019 VAX found occupational and social impairment with reduced reliability and productivity. When coming to this conclusion the examiner considered the Veteran’s TBI diagnosis, TBI symptoms, and September 2017 VAX. The examiner found symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty adapting to stressful circumstances including working or a work like setting, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran reported hearing voices, but the examiner did not find the Veteran had persistent delusions or hallucinations. The Veteran was found to be oriented to person, place, and time. The Veteran arrived casually dressed on time, he was cooperative, maintained eye contact, speech was normal, no disturbances were noted in thought process, effect was congruent with content, insight was good, and judgment was good. Id. The examiner did not find gross impairment in thought processes or communication. Id. At the July 2019 VAX ,the Veteran reported attending Oakland Community College until 2018 and graduating with a General Studies and Liberal Arts associate degrees. The Veteran reported that since discharge he has worked at [REDACTED] full time as warehouse management. The Board affords the July 2019 VAX higher probative weight then the September 2017 VAX, as the July 2019 VAX is more consistent with the record and considered the Veteran’s lay statements and the September 2017 VAX. The Board has afforded the September 2017 VAX little probative weight as medical finding are inconsistent with the Veteran’s treatment records and the July 2019 VAX. The examiner stated that he had a lot of difficulty with the Veteran’s case due to poor records (the Veteran failed to return authorizations for records). The record has consistently shown that the Veteran has no gross impairment in thought processes or communication, has consistently held employment, is oriented to time and place, and does not exhibit inappropriate social behavior. The September 2017 VAX is an outlier and not representative of the Veteran’s entire disability picture. The Board has considered the Veteran’s reports of symptoms. Again, the Board acknowledges the Veteran is competent to report readily observable symptoms. However, the Board has found some inconsistency with the Veteran’s statements. For example, in the July 2019 VAX the Veteran reported hearing voices over the past 4 years, but in the December 2016 VAMC records the Veteran denied hallucinations and delusions. See December 2016 VAMC. The Board has afforded all the Veteran’s lay statements limited probative weight. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. The symptoms discussed in the September 2017 VAX for TBI are outlier and not representative of the Veteran’s disability picture. Further, the July 2019 VAX found occupational and social impairment with reduced reliability and productivity, even after considering the Veteran’s intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Meaning that symptom is less severe, less frequent, and shorter induration than contemplated by a 100 percent rating. Further, suspiciousness, exaggerated started response, nightmares, vigilant, flashbacks, difficulty with concentration, avoidance behavior, and mood swings, are contemplated by the assigned 70 percent rating. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. The evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. Total social and occupational impairment is simply not shown. At his July 2019 VAX he reported full-time employment as a warehouse manager. Although he reported long-periods of absence due to health problems, the fact remains that the Veteran is employed. Such belies the notion of total occupational impairment. The facts of this appeal also weigh against a finding of total social impairment The Veteran has been married since 2015. He described the relationship as “pretty good” at the July 2019 VAX. He reports less fulfilling relationships with his two children from a prior relationship. He indicated that he interacts with his youngest once every other day via telephone and his oldest he says is “hit or miss.” He said he had four step-children and that he got along well with them. He added that he had three guys from the Army whom he considers close friends. REASONS FOR REMAND 1. Entitlement to an increased rating for 20 percent for service-connected osteoarthritis of the bilateral knees is remanded. A plain reading of the August 2019 Supplement Statement of the Case (SSOC) provides no guidance or information to properly pursue his appeal. Specifically, there is conflicting information on how the bilateral knee disability rating is being evaluated. An August 2019 Rating Code Sheet shows that the Veteran is in receipt of a 20 percent rating for Osteoarthritis, bilateral knees and that rating has been in effect since May 2005, which is when the Agency of Original Jurisdiction (AOJ) combined the ratings for the Veteran’s right and left knee disabilities. However, a contemporaneous August 2019 SSOC lists the issues on appeal as entitlement to a rating in excess of 20 percent for osteoarthritis of the right knee and a rating in excess of 20 percent for osteoarthritis of the left knee. The ensuing analysis in the SSOC indicates the AOJ was continuing the 20 percent rating as well as assigning a 20 percent rating for the right and left knee disabilities. Therefore, the claim must be remanded. 2. Entitlement to service connection for bilateral hearing loss is remanded. In the June 2018 Board Decision, the Board remanded the claim for service connection for bilateral hearing loss for a new VA examination. The Board requested that the examiner address both periods of active duty service, from November 1989 to November 1993, and October 2001 to April 2002. The VA examination conducted on July 13, 2019 only addressed the first period of active duty service, the audiometer testing conducted in 2001 that shows a threshold shift were not addressed. The VA examination conducted on July 17, 2019 did not address any period of service as a nexus opinion was not provided and the test results were not valid for rating purposes. Therefore, the remand instructions were not fully complied with, and as such, a remand is appropriate. See Stegall v. West, 11 Vet. App. 268 (1998). The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that a remand is again warranted under Stegall. 3. Entitlement to service connection for tinnitus is remanded. In the June 2018 Board Decision, the Board found that the matter of entitlement to service connection for tinnitus was inextricably intertwined with the matter of entitlement to service connection for bilateral hearing loss. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, this claim must also be remanded. The matters are Remanded for the following action: 1. A SSOC should be issued clarifying whether the AOJ was continuing the previous 20 percent rating for osteoarthritis of the bilateral knees, or assigning a separate 20 percent rating for the right knee disability and left knee disability. 2. Arrange to obtain from an appropriate VA audiologist an addendum opinion addressing the etiology of diagnosed bilateral hearing loss and tinnitus, based on claims file review, if possible. If an examination is deemed necessary in the judgment of the audiologist designated to provide the addendum opinion, one should be arranged. The claims file must be made available to the examiner for review in connection with the examination. a. With respect to the diagnosed bilateral hearing loss and tinnitus, the examiner should render an opinion, consistent with sound medical judgment, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in service or is otherwise medically related to in-service injury or disease, including the conceded acoustic trauma. In rendering his/her opinion, the examiner should address both periods of the Veteran’s active duty service, referenced above. b. In this regard, the examiner should note that the absence of evidence of treatment for bilateral hearing loss and tinnitus in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. c. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the Veteran’s assertions in any regard are discounted, the examiner should clearly so state and explain why. d. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.