Citation Nr: 20021025 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 16-03 566 DATE: March 24, 2020 ORDER Entitlement to a rating of 50 percent for posttraumatic stress disorder (PTSD), and no higher, is granted. REMANDED Entitlement to a rating in excess of 10 percent for degenerative disc disease (DDD) of the lumbosacral spine is remanded. Entitlement to service connected for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT For the entire period on appeal, the Veteran’s service-connected PTSD has resulted in no more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a 50 percent rating, but no higher, for PTSD have been met for the entire period on appeal. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 2003 to October 2005 with service in Southwest Asia. In April 2018, the Veteran presented sworn testimony during a video conference hearing in Cincinnati, Ohio, before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different ratings, staged ratings may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 1. Entitlement to a rating in excess of 30 percent for PTSD The Veteran’s service-connected PTSD has been evaluated as 30 percent disabling under Diagnostic Code 9411. Diagnostic Code 9411 (PTSD) is rated under the General Rating Formula for Mental Disorders. The General Rating Formula provides that a 30 percent rating is assigned for 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 rating 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 mood and motivation; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The use of the term “such as” in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” The Veteran was first examined in conjunction with his current claim in September 2010. VA-MES PTSD examination, September 2010. At that time, he complained of worsened anger, difficulty with road rage, difficulty falling asleep, infrequent nightmares, occasional night sweats and terrors, obsessive worrying, depressed mood, hopelessness, occasional intrusive memories of Iraq, heightened startle response, panic attacks, suppressed appetite, impaired impulse control, and difficulty concentrating. The examiner noted that he was in the process of getting divorced, was close to his family, and had many friends but did not see them as much as in the past. The Veteran reported taking his dog to the reservoir and attending sporting events. The examiner concluded that the Veteran experienced an occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but generally functioning satisfactorily. He diagnosed the Veteran with PTSD and major depression (single episode, moderate) and opined that most of his symptoms were moderate other than his sleep impairment, depression, and suppressed appetite which were moderate to severe. The Veteran was next examined for his service-connected PTSD in March 2011. VA PTSD examination, March 2011. At that time, he complained of sleep impairment, episodes of violence, poor impulse control, exaggerated startle response, and hypervigilance. He reported attending a technical college and that he was divorced. He did not go out as much or have as many friends as he used to but got along with his family. He indicated that he attended sporting events and went fishing once per week when the weather was warmer. The examiner observed normal affect, good mood, intact attention, unremarkable thought content and process, average intelligence, and adequate judgment. He diagnosed the Veteran with PTSD and opioid dependence in early full remission and concluded that it resulted in occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms but generally functioning satisfactorily. He found that the Veteran’s symptoms were mild and that his functional deficits included concentration issues at school and family-role problems. The Veteran was then examined in October 2015. At that time, he complained of anxiety, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, impaired impulse control, poor attention span, anxiety attacks, and irritability. He reported that he remained divorced, but that his relationships with his parents and friends have improved since stopping drugs. He also reported a good relationship with his brother and that he was dating a woman and attending individual and group counseling at church. The examiner diagnosed the Veteran with chronic PTSD and concluded that it resulted in occupational and social impairment with deficiencies in most areas. Finally, the Veteran was most recently examined for his PTSD in June 2019. VA PTSD examination, June 2019. At that time, he complained of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty concentrating, hypervigilance, mildly impaired ability to follow/understand instructions, moderately impaired ability to retain instructions, mildly impaired ability to communicate effectively in writing, and mildly impaired ability to solve technical or mechanical problems. The examiner observed linear thought processes, maintenance of personal hygiene, normal and appropriate behavior, constricted affect, no hallucinations or delusions (but quite hypervigilant/suspicious), no obsessions or compulsions, no manic symptoms, and no significant long-term memory issues. The Veteran reported that he was married and had a good relationship with his wife and family members, attended church but was less involved since moving to a new church, and was not currently working as his previous job ran out of money and he was taking online classes and taking care of his 14 month old son. The examiner opined that he would have moderately impaired ability to work cooperatively and effectively with co-workers, supervisors, and the public due to his psychiatric symptoms. Specifically, the examiner noted that his irritability/outbursts of anger could alienate others and cause fear, his exaggerated startle response causes embarrassment, and that he has difficulty functioning well under stress. The examiner diagnosed the Veteran with PTSD, chronic adjustment disorder with mixed anxious and depressed mood, and severe opioid use in sustained remission. He was unable to differentiate which impairment was caused by which diagnosis but did indicate that his present symptoms were not caused by his opioid use disorder as it was in remission. He concluded that the Veteran’s psychiatric disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. In addition to the VA and VA contract examinations, the record includes VA treatment records and lay statements and hearing testimony from the Veteran. This medical and lay evidence is consistent with the evidence discussed above. Based on the evidence of record and with resolution of reasonable doubt in the favor of the Veteran, the Board finds that his psychiatric disorder has resulted in at least occupational and social impairment with reduced reliability and productivity. He reported positive family relationships, but also some difficulty interacting with others due to his irritability. Moreover, his concentration problems, hypervigilance, suspiciousness, and irritability would cause problems in a work setting. While these symptoms do not preclude him from working or engaging in relationships, they do cause difficulty. The most recent VA examiner specifically described his impairment in working cooperatively and effectively with co-workers, supervisors, and the public as moderate. While he is able to function socially and occupationally, the medical evidence suggests there is certainly impairment with some reduction in reliability and productivity. This level of symptomatology fulfills the criteria for a 50 percent rating for the entire period on appeal. While the evidence supports an increased rating of 50 percent, there is no basis for a rating in excess of 50 percent for the Veteran’s psychiatric disorder. There is no evidence of occupational and social impairment with deficiencies in most areas. The Veteran does maintain relationships with his family of origin and his wife and children/stepchildren. Although he had moderate impairment in occupational functioning while working, he was able to do so for a period of time and continues to be able to attend school. There is no evidence of hallucinations, delusions, grossly abnormal behavior, or danger of hurting or others. Without evidence of more severe social and occupational impairment, a higher initial rating of 70 or 100 percent cannot be assigned under the General Rating Formula. There is also no indication in the medical evidence that the Veteran’s service-connected PTSD warranted other than the now assigned 50 percent disability rating at any point during the appeals period. The assignment of staged ratings is not warranted. See Hart, supra. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for DDD of the lumbosacral spine is remanded. The Veteran was afforded a VA examination for his low back disability most recently in June 2019. VA Back (Thoracolumbar Spine) Conditions examination, June 2019. He reported experiencing flare ups during which his functional ability was significantly limited, and he was “unable to move much at all.” However, the examiner failed to provide an estimate of this limitation in terms of range of motion so that the Board may consider the appropriate evaluation under the rating criteria. As such, this issue must be remanded for a new VA examination. 2. Entitlement to service connected for residuals of a TBI is remanded. The Veteran has been afforded VA and VA contract examinations for his claimed residuals of a TBI, including most recently in February 2014. VA-MSLA Residuals of a TBI examination, February 2014. The February 2014 examiner diagnosed the Veteran with TBI residuals and linked them to his military service, based on three claimed in-service head injuries. However, only one of these head injuries has been verified. Specifically, a letter from the Defense and Veterans Brain Injury Center indicates that the Veteran was seen four times (day 0, day 7, day 30, and week 12) as part of a brain injury study. Research study records, September 2004. Although the records do not specify whether the Veteran participated as someone who had a head injury or as a control subject, the informed consent indicates that only participants with recent head injuries would be reevaluated on the day 0, day 7, day 30, week 12 schedule. This suggests that the Veteran had a recent head injury. This correlates timewise with the claimed head injury associated with his parachute injury in September 2004. As only this head injury has been confirmed, the Board finds that this claim must be remanded to address whether the Veteran’s residuals of a TBI are related to this head injury alone. 3. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues of an increased rating for the low back and service connection for residuals of a TBI could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the TDIU claim is required. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination of the current severity of his low back disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to low back disability alone and discuss the effect of the Veteran’s low back disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. This estimate should be provided in terms of range of motion. 2. Provide the Veteran’s claims file to an appropriate clinician for an opinion on the nature and etiology of his residuals of a TBI. The Veteran may be recalled for examination if deemed necessary. The examiner should state whether it is at least as likely as not that the Veteran’s residuals of a TBI are related to the September 2004 parachute accident with head injury. The examiner should address the Veteran’s participation in a recent head injury study shortly thereafter. *The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, 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.