Citation Nr: 20021235 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 12-31 445A DATE: March 25, 2020 ORDER Entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD) prior to September 5, 2019 is granted. Entitlement to an initial rating in excess of 70 percent for PTSD is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD and/or residuals of right wrist laceration, is remanded. FINDING OF FACT For the entire initial appeal period, the Veteran’s PTSD symptoms have been manifested by occupational and social impairment with deficiencies in most areas, but not by total occupational and social impairment. CONCLUSION OF LAW 1. Prior to September 5, 2019, the criteria for an initial 70 percent rating for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. For the entire appeal period, the criteria for an initial rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from January 2002 to January 2005. In the November 2012 substantive appeal, the Veteran requested a videoconference Board hearing. However, in an April 2017 written correspondence, the Veteran withdrew his request for a hearing with the Board. In January 2019, the Board denied the issue of service connection for a respiratory disorder and remanded the issues of service connection for hypertension and an initial rating in excess of 50 percent for PTSD for additional evidentiary development. The case has been returned to the Board for further appellate review. With regard to the issue of entitlement to an initial rating in excess of 50 percent for PTSD, there was substantial compliance with the January 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Veteran was provided a VA Disability Benefits Questionnaire (DBQ) examination for PTSD in September 2019 and the issue was readjudicated in a February 2020 supplemental statement of the case (SSOC). Additionally, neither the Veteran nor his attorney has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to an initial rating in excess of 50 percent prior to September 5, 2019 and in excess of 70 percent thereafter for PTSD By way of pertinent history, the Veteran filed a service-connection claim for PTSD on June 4, 2009. In an August 2010 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for PTSD and assigned a 50 percent rating effective June 4, 2009. In a February 2020 rating decision, the AOJ increased the initial rating to 70 percent effective September 5, 2019. Despite the grant of an initial higher rating, the 50 and 70 percent disability ratings are not the highest possible ratings, and his claim remains in appellate status. A.B. v. Brown, 6 Vet. App. 35 (1993). The Board considers whether an initial rating in excess of 50 percent prior to September 5, 2019 and in excess of 70 percent thereafter for PTSD is warranted in this case. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in June 2009. Fenderson v. West, 12 Vet. App. 119 (1999). 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. 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating, the maximum available, is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. After a thorough review of the pertinent evidence, the Board finds that the severity, frequency, and duration of the Veteran’s symptoms most closely approximate the symptoms contemplated by a 70 percent rating for the entire initial appeal period; accordingly, a 70 percent rating is granted prior to September 5, 2019. For the entire initial appeal period, a rating in excess of 70 percent is denied. In this regard, evidence submitted in connection with his June 2009 claim shows that the Veteran has essentially exhibited the same level of serious symptomology throughout the entire initial appeal period. In an October 2009 statement, the Veteran stated that he suffered from spells of depression, had almost “lost” his marriage on several occasions, went days without sleep, and had disturbing nightmares. He said he felt like he was hiding so much inside that he felt like he wanted to snap. He recounted an incident where he almost pulled a motorist out of his vehicle and beat him. In a March 2010 psychological consultation report, a doctor in the Army indicated that the Veteran suffered from PTSD and depression and that his symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The doctor wrote that the Veteran was unable to focus at his job, had impaired attention and concentration, low motivation, and an inability to persist at tasks that he would be able to do if not for his PTSD and depression. At an April 2010 VA examination conducted in concert with the American Consulate General for veterans living abroad, the Veteran told the provider that he suffered from reoccurring nightmares about explosions and sometimes awoke in tears or completely disoriented. He said he could only sleep for three to four hours and was afraid to go to sleep. He endorsed symptoms of impatience, irritability, and difficulty in attending to personal hygiene. He recounted seeing images of corpses. He described having outbursts of rage and weekly panic attacks. He also said that he did not intend to pursue any kind of romantic relationship as he had “too many problems to be able to do so.” He denied having any friends and said he spoke to his parents once per week but did not talk to them about his psychological problems. The examiner said that the Veteran’s emotional strain was clearly evident and that the Veteran appeared depressed and indifferent. He noticed that the Veteran exhibited a startled response upon hearing a door being used in another room. Notably, the examiner stated that though the Veteran was employed, he was only able to maintain employment by avoiding almost all contact with others and working alone in his office. In a January 2013 statement, the Veteran said that his PTSD had a profound effect on his life insofar as he suffered from terrible dreams that limited his ability to sleep. He said he could not be around large groups of people. He said he struggled to maintain his employment and had changed jobs on five different occasions. He said he mostly stayed home and tried to avoid contact with other people. He described having flashbacks of his friends being killed and said he had thought about suicide. In an August 2017 statement, the Veteran attributed the dissolution of his family to his PTSD and his constant outbursts, depression, and nightmares. In an October 2018 examination report, Dr. F.N. summarized the Veteran’s level of impairment as that of total occupational and social impairment. The Veteran said that he had no close friends and did not socialize. The Veteran said that he had a wife and two children and that their “innocent screams” bothered him excessively, causing him to have a temper towards them. The Veteran explained that he was currently working in a mailroom where he was “away” from everybody else. The examiner noted that the Veteran was working full-time but needed accommodations for his anger, irritability, and anxiety. He said he felt happier with that role. The examiner noted suicidal ideation, obsessional rituals, persistent delusions, impaired impulse control, and disorientation. A February 2019 VA treatment note shows that the Veteran reported symptoms of PTSD with intrusive memories and troubling nightmares. He reported anxiety about public situations. He said he worried about being able to keep his job due to problems tolerating coworkers. He denied suicidal ideation. Dr. E.S. submitted a PTSD DBQ in September 2019. At that examination, the Veteran reported that he was married with two children but that his PTSD symptoms, including his anger and irritability, had significantly interfered with his family functioning. He said he was depressed and had a history of suicidal ideation without plan or intent. He reported nightmares and night terrors that interfered with his sleep quality and duration. The examiner indicated that the Veteran was alert and oriented with fair eye contact, normal speech, linear and logical thoughts, no delusions, obsessions, or compulsions, and no evidence or reports of hallucinations. The Veteran underwent a VA PTSD examination in September 2019. The examiner summarized the Veteran’s level of impairment as that of occupational and social impairment with deficiencies in most areas. The Veteran reported that the relationship with his wife and kids was rocky. He said he blamed and yelled at them. He said he was withdrawn and avoided being around others. He explained that he worked in an isolated setting of a mailroom because he could not meet the demands of working with supervisors and coworkers. He said he did not want to quit his job though he struggled with job duties. He said he felt like he would be fired soon. The Veteran explained that he had weekly panic attacks, anxiety, and depression, problems sleeping, nightmares, cold sweats, hallucinations, and short memory. He denied any suicidal ideation because of his kids and family. He said he sometimes saw the faces of people who were killed in Iraq, which led to panic attacks. As noted above, the Board finds that the Veteran’s PTSD symptomatology has been relatively consistent throughout the entire initial appeal period and is more closely consistent with the criteria for a 70 percent rating. In this regard, the Veteran has endorsed frequent and distressing nightmares that cause him to have night terrors and cause major sleep impairment. He has consistently described profound depression and anxiety to the detriment of the relationship with his family. He has endorsed thoughts of suicide though has noted that he has no plan or intent. Though working, he has explained that he has had much employment turnover and has had to work in a capacity where he is mostly isolated from others. The Board finds these symptoms to be serious and productive of occupational and social impairment with deficiencies in most areas. However, the Board finds that the totality of the evidence does not demonstrate that the Veteran’s PTSD symptoms manifested in total occupational and social impairment, so as to warrant the assignment of a 100 percent rating at any time during the entire initial rating period. Though his employment history indicates that he suffers from a high degree of occupational impairment, he has been shown to have steady employment, albeit employment in which he is isolated from others. Despite a showing that his PTSD has interfered greatly with his family relationship, the evidence does not demonstrate total social impairment. For all these reasons, the Board concludes that an initial rating of 70 percent, and no higher, is warranted for the entire initial appeal period. REASONS FOR REMAND Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD and/or residuals of right wrist laceration The Veteran contends that he has hypertension that onset during service. In support of the Veteran’s claim is a March 2015 opinion from Dr. D.B., wherein he noted that the Veteran had hypertension and opined that it was more likely than not caused by military service. The rationale was that the condition did not exist prior to service. Dr. D.B. also opined that the Veteran’s service-connected wrist condition and PTSD contributed to his high blood pressure. Dr. D.B. submitted his opinion in the form of circled answers, and he did not check the boxes indicating that he had reviewed the claims file or any documents. There is also no indication that he examined or interviewed the Veteran. In May 2010, the Veteran indicated that he took medication for hypertension. A June 2009 treatment record indicates that the Veteran had “blood pressure isolated elevated” and was advised to seek follow-up treatment and was started on a low-sodium diet. At the September 2019 VA examination, the Veteran told the VA examiner that he stopped taking blood pressure medication in 2017 because he no longer had a diagnosis of hypertension. The Veteran’s blood pressure was recorded three times at the examination and all the readings showed blood pressure within a normal range. The examiner indicated that there was no diagnosis of hypertension. Additionally, VA treatment records do not list hypertension as a diagnosis, and there is no indication that the Veteran takes medication for hypertension. An August 2018 review of systems was negative for hypertension. Moreover, the Veteran underwent a VA DBQ examination for hypertension in September 2019. The VA examiner interviewed and examined the Veteran and made findings of normal blood pressure and no current diagnosis for hypertension based on an examination and review of the Veteran’s medical history. In light of the Veteran’s reported post-service treatment for high blood pressure and post-service VA treatment records dated in 2009 and 2010 showing isolated blood pressure was elevated, the Board finds that an addendum opinion is needed to adjudicate this claim on appeal pursuant to his service in the Southwest Asia theater of operations, specifically in Iraq from May 2003 to July 2004. See 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (2019); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following actions: 1. Return the Veteran’s claims file to the examiner who conducted the September 2019 VA DBQ examination for hypertension so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran’s current symptomatology for hypertension (isolated elevated blood pressure readings since separation from service in January 2005) is due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War, or otherwise due to his active military service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, review the medical opinion to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 3. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.