Citation Nr: 21000065 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 11-10 729 DATE: January 4, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) with anxiety and depressed mood is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The most probative evidence of record shows the Veteran’s PTSD is manifested with depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, impaired impulse control, and mild memory loss, and at worst, demonstrates occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.4, 4.7, 4.130, DC 9400-9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1988 to May 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, the Board granted service connection for PTSD and remanded the above-referenced issues for issuance of a supplemental statement of the case, which was issued in January 2017. In September 2017, the Board combined and recharacterized the Veteran’s psychiatric disability claims into one acquired psychiatric disability claim as presently noted above, and remanded the claims for additional development, specifically, to afford the Veteran a new VA examination to assess the severity of the Veteran’s psychiatric condition and its impact on his employability. This matter was previously before the Board in July 2019, when it was remanded again to reschedule the Veteran’s VA examinations. In compliance with the remand directives, VA examinations were conducted. The directives have been substantially complied with, and the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a disability rating in excess of 50 percent for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) with anxiety and depressed mood The Veteran asserts entitlement to a disability rating in excess of 50 percent for his acquired psychiatric disability. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Generally, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). By way of history, the Veteran was granted service connection for anxiety disorder with depressed mood in a December 2010 rating decision, evaluated as 10 percent disabling effective January 2009. A May 2016 Board decision granted entitlement to service connection for PTSD. A May 2016 rating decision assigned a disability rating of 50 percent effective May 2008. A September 2017 Board decision combined and recharacterized the Veteran’s PTSD and anxiety disorder with depressed mood under a single Diagnostic Code (DC) and remanded the Veteran’s increased rating claim for a new VA exam to assess the nature and current severity of the Veteran’s psychiatric condition and its impact on his employability. A July 2019 Board decision remanded the Veteran’s increased rating claim again to reschedule the Veteran’s VA examination. A VA examination was conducted in December 2019. A June 2020 supplemental statement of the case (SSOC) denied entitlement to a disability rating in excess of 50 percent for the Veteran’s acquired psychiatric disability. The Veteran’s acquired psychiatric disability is rated under DCs 9400-9411. The rating criteria provides that a 10 percent rating is assigned when a Veteran’s PTSD causes occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or when symptoms are controlled by continuous medication. A 30 percent requires a mental disability resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent evaluation is warranted if the evidence establishes 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 or social relationships. Id. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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. Id. A 100 percent evaluation is warranted 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. Id. 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 on all the evidence of record that bears on occupational and social impairment, rather than solely on 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 based on social impairment. 38 C.F.R. § 4.126. 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). The Veteran was afforded a VA examination in July 2013. The Veteran reported post service employment as a security guard and later, as a welder on a shipyard. He also admitted that he has been unable to maintain employment for any extended period due to his difficulty with authority and irritable mood in the workplace setting. He also noted that he had not worked since he was awarded social security benefits. On examination, the Veteran’s symptoms included depressed mood, suspiciousness, flattened effect, disturbances of motivation and mood, and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran denied suicidal ideation. Following a review of the evidence and clinical evaluation, the examiner concluded that that Veteran’s psychiatric disability causes occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during period of significant stress; or, symptoms controlled by medication. The VA examiner also noted the Veteran’s current symptoms meet the DSM-IV diagnostic criteria for the diagnoses of Personality Disorder, polysubstance dependence, and substance-induced mood disorder. The examiner reported that the Veteran’s personality disorder pre-existed service and his poor coping skills are evidenced by his choice to abuse multiple substances, which is willful behavior. The VA examiner concluded that that the Veteran’s substance-induced mood disorder is caused by his polysubstance abuse. The examiner made no reference to a formal conclusion as to the impact of the Veteran’s condition on his employability. In accordance with the July 2019 Board remand, the Veteran was afforded a VA examination in December 2019, to assess the current manifestations of his acquired psychiatric disability. The VA examiner noted a diagnosis of PTSD and reported that the Veteran’s anxiety disorder with depressed mood is subsumed under his PTSD diagnosis. The Veteran reported problems communicating, admitting that he can be hateful and mean, as well as isolating himself. The Veteran stated that he has not worked since 1999. The Veteran endorsed PTSD symptoms including depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, and mild memory loss. The Veteran was casually dressed and groomed and provided information readily with appropriate eye contact. The VA examiner noted that the Veteran’s psychiatric disability results in occupational and social impairment with reduced reliability and productivity. The VA examiner further noted that the Veteran has difficulty attending to a task at hand, has intrusive thoughts which interfere with his ability to focus, has significant difficulty accepting supervision or receiving instructions without becoming angry (authority conflict), and has difficulty focused due to fatigue from sleep disturbances. The VA examiner reported that the Veteran’s psychiatric disability is less likely than not to render him unable to secure and maintain substantially gainful employment. Based on the evidence, the Board finds that a rating in excess of 50 percent for the Veteran’s acquired psychiatric disability is not warranted. The symptomatology described consistently demonstrated issues with depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, impaired impulse control, and mild memory loss, and occupational and social impairment with reduced reliability and productivity, which more closely approximate the 50 percent criteria. There is no evidence of symptoms associated with the 70 percent disability rating, including 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); or inability to establish and maintain effective relationships. The evidence of record shows that the Veteran was alert and fully oriented, with good hygiene, normal speech, and appropriate eye contact. The Board notes that the Veteran has reported a strained relationship with his wife, stating that he accuses her of something that is not there, and that he can be irritable and mean, but this does not rise to the level of an inability to establish and maintain effective relationships contemplated under the 70 percent disability rating. The Veteran has consistently denied suicidal ideation. Furthermore, no VA examiner has reported that the Veteran’s psychiatric disability rise to the level of occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, as required for a 70 percent disability rating. The Board has considered all of the Veteran’s symptoms, as he himself has described them, but finds that the Veteran’s overall functioning most closely approximates occupational and social impairment with reduced reliability and productivity. The nature and severity of the Veteran’s symptoms and their resultant occupational and social impairment is contemplated by the 50 percent rating assigned. The Board finds that a preponderance of the evidence is against a rating in excess of 50 percent, the benefit of the doubt doctrine does not apply, and the claim must be denied. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran contends that he is unable to pursue gainful employment based on his service-connected disabilities. See August 2020 Appellate Brief. The Veteran is currently service-connected for PTSD with anxiety disorder and depressed mood, rated as 50 percent disabling; post phlebitis syndrome of the right lower leg, rated as 40 percent disabling; left lower extremity radiculopathy (sciatic nerve), rated as 20 percent disabling; right lower extremity radiculopathy (sciatic nerve), rated as 10 percent disabling; herniated nucleus pulposus, lumbosacral spine, rated as 20 percent disabling; nose bleeding, rated as noncompensable; surgical scar associated with herniated nucleus pulposus, rated as noncompensable; pterygium of the right eye, rated as noncompensable. The Veteran’s combined evaluation for compensation is 90 percent as of June 2016. A review of the Veteran’s Social Security Administration records show that the Veteran is considered disabled as of August 2000 due to lumbar disc disease, deep vein thrombosis, and polysubstance abuse (in remission). The Board notes that the Veteran was granted entitlement to TDIU from August 2001 to December 2001, based on the Veteran’s inability to secure or follow a substantially gainful occupation as a result of his service-connected lumbar spine disability. The RO determined the time period based on Social Security Administration (SSA) records showing the Veteran became too disabled to work due to his lumbar spine symptoms in August 2000. The Board further notes that, at the time of his temporary TDIU grant, the Veteran’s lumbar spine disability was rated as 60 percent disabling, effective August 2001, which was increased to a temporary 100 percent disability rating, based on surgical or other treatment necessitating convalescence. A 20 percent disability rating was assigned from March 2002, for which the Veteran is currently in receipt of. The Veteran was last afforded a VA examination for his lumbar spine disability in July 2016. The VA examiner noted diagnoses of intravertebral disc syndrome (IVDS) and herniated nucleus pulposus, lumbosacral spine, L4-5, and disc bulge L3-4. The Veteran denied flare-ups and functional loss. Range of motion testing revealed normal measurements, with flexion from 0 to 90 degrees, extension from 0 to 30 degrees, right lateral flexion from 0 to 30 degrees, left lateral flexion from 0 to 30 degrees, right lateral rotation from 0 to 30 degrees, and left lateral rotation from 0 to 30 degrees. Pain was noted upon examination but did not result in functional loss. The Veteran was able to perform repetitive-use testing with no additional loss of function after three repetitions. The VA examiner noted guarding and localized tenderness that did not result in abnormal gait or spinal contour. There was no evidence of muscle spasm. Muscle strength was 5/5 with no atrophy. No ankylosis was present. The VA examiner reported that the Veteran’s spine disability impacts his ability to work, making him unable to stoop, bend, lift, carry, sit in place for long periods of time, or drive long distances. The Veteran was last afforded a VA examination for his post phlebitis syndrome in July 2016. The VA examiner noted a diagnosis of varicose veins and/or post phlebitic syndrome. The Veteran reported that his condition began following a complication with his back surgery and that his condition had worsened. The VA examiner noted aching in the Veteran’s right leg after prolonged standing as well as beginning stasis pigmentation, persistent stasis pigmentation, intermittent ulceration, persistent edema that is incompletely relieved by elevation of the extremity, persistent edema, and persistent subcutaneous induration. The VA examiner reported that the Veteran’s vascular condition impacts his ability to work, making him unable to stand for prolonged periods of time. The Veteran was last afforded a VA examination for his surgical scar in July 2016. The VA examiner noted a right leg scar. The Veteran reported that the scar is painful, resulting in burning and itching sensations. The VA examiner reported that the Veteran’s lumbar scar is linear, measuring 23 centimeters (cm). The VA examiner reported that the Veteran’s scar does not impact his ability to work. In the August 2020 Appellate Brief, the Veteran’s representative reported that the Veteran has stated that his disabilities have worsened. Furthermore, the Veteran’s representative has specifically requested a remand to obtain further medical opinions regarding the severity of the Veteran’s symptoms. The Board notes that the Veteran was provided with VA examinations for his psychiatric disability in December 2019 and pterygium of the right eye in August 2020, which are both adequate for rating purposes. However, it has been over four years since the Veteran was afforded VA examinations for his spine disability and radiculopathy, vascular condition, and scar. Accordingly, new VA examinations are warranted to determine the current severity of the Veteran’s service-connected spine disability and lower extremity radiculopathy, post phlebitis syndrome, and surgical scar associated with herniated nucleus pulposus, and any impacts on his ability to secure and maintain substantially gainful employment. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current level of severity of his lumbar spine disability and lower extremity radiculopathy. The contents of the electronic claim files, to include a copy of this Remand, are to be made available to the designated examiner for review. The examiner is to note in the medical report that this action has been accomplished. All tests and studies, as well as the clinical findings contained therein, should be reported in detail. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Range of motion testing in active motion, passive motion, weight-bearing, and nonweight-bearing should be accomplished. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe the nature and severity of all manifestations of the Veteran’s lumbar spine disability. In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of extension, forward flexion, left and right lateral flexion, and left and right rotation. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion, extension, and/or rotation at which such pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. If range of motion is not possible, the examiner should indicate whether the Veteran has unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. The examiner should also state whether the Veteran has intervertebral disc syndrome (IVDS). If so, state whether IVDS results in incapacitating episodes, and if so, the duration of the episodes over the past 12 months. The examiner must also identify and discuss the nature and extent of any lower extremity radiculopathy. The examiner should opine, to the extent possible, as to whether such results in complete paralysis or “mild,” “moderate,” “moderately severe,” or “severe” incomplete paralysis. The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran’s lumbar spine disability and any lower extremity radiculopathy on his daily activities and employability. All opinions expressed should be accompanied by supporting rationale. 2. Schedule the Veteran for a VA examination to determine the current severity of his post phlebitis syndrome. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran’s vascular disability on his daily activities and employability. The examiner must provide all findings, along with a complete rationale for his or 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. 3. Schedule a VA examination to ascertain the current severity of the Veteran’s service-connected surgical scar associated with herniated nucleus pulposus. The Veteran’s electronic claims files must be made available to, and be reviewed by, the examiner. All indicated testing should be accomplished and all symptomatology associated with the surgical scar should be identified. The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran’s surgical scar on his daily activities and employability. 4. Schedule a VA examination to ascertain the current severity of the Veteran’s service-connected nosebleeds. The Veteran’s electronic claims files must be made available to, and be reviewed by, the examiner. All indicated testing should be accomplished and all symptomatology associated with the Veteran’s nosebleeds should be identified. The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran’s nosebleeds on his daily activities and employability. 5. Thereafter, and after adjudicating the intertwined issues, adjudicate the issue of entitlement to a TDIU, to include obtaining any additional VA examinations or referral for extra-schedular opinion. 6. After completing all actions set forth above and any further action needed because of the above development, readjudicate the claims on appeal. If any benefit on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate Supplemental Statement of the Case (SSOC) and allow the appropriate time for response. Then return the case to the Board for further appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, 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.