Citation Nr: 21000467 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 18-07 940 DATE: January 5, 2021 ORDER Entitlement to an initial 50 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to the applicable regulations concerning the payment of monetary benefits. REMANDED Entitlement to an initial rating higher than 20 percent for left shoulder impingement syndrome is remanded. Entitlement to an initial rating higher than 20 percent for left shoulder recurrent dislocation-scapulohumeral joint is remanded. Entitlement to an initial rating higher than 10 percent from April 6, 2015 to February 18, 2020, and higher than 20 percent thereafter, for left ulnar neuropathy is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his PTSD is characterized by occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to July 1983, and from June 2008 to June 2009. The Veteran also had service of an unverified nature in the Reserves. The claim for increased rating for PTSD comes from a January 2016 rating decision. The claim was previously before the Board of Veteran’s Appeals (Board) in October 2019. At that time, the Board denied entitlement to rating higher than 30 percent. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC), which granted a Joint Motion for Partial Remand in August 2020. The Board’s decision was vacated, and the claim is returned. The JMR found that the Board failed to provide an adequate statement of reasons or bases when it did not address a July 2009 VA neuropsychological examination that was favorable to the Veteran’s claim. The claims regarding the Veteran’s left shoulder disability and left ulnar neuropathy came from an August 2015 rating decision. The Veteran filed a Notice of Disagreement (NOD) in October 2015, which resulted in a January 2018 Statement of the Case (SOC). The Veteran subsequently filed a substantive appeal in February 2018. The claims were previously before the Board in April 2019. AT that time, they were remanded for the Agency of Original Jurisdiction (AOJ) to consider evidence added after the SOC was issued. The claims were returned to the Board in October 2019 and remanded again to obtain adequate VA examination. The Board notes that there has not been substantial compliance with its October 2019 remand directives at this time. Notably, the rating for the Veteran’s left ulnar neuropathy was increased to 20 percent effective February 18, 2020. Furthermore, the Veteran’s left shoulder disability was initially assigned a 20 percent disability rating for left shoulder impingement syndrome with glenohumeral joint dislocation. However, the AOJ assigned a separate 20 percent rating for recurrent dislocation-scapulohumeral joint effective February 19, 2020 based on the examination provided upon remand. The maximum rating possible was not assigned to these disabilities. AB v. Brown, 6 Vet. App. 35. (1993). Therefore, the Board concludes that entitlement to increased rating for left ulnar neuropathy, left shoulder impingement syndrome and recurrent dislocation-scapulohumeral joint all remain on appeal. 1. Entitlement to an initial rating of 50 percent for PTSD is granted. A disability rating is determined by the application of VA’s Schedule Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate DCs identify the various disabilities.38 U.S.C. § 1155 ;38C.F.R. §4.1.Where there is a question as to which two evaluations should 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.38C.F.R. §4.7. The Veteran’s PTSD is rated as 30 percent disabling under DC 9411, which is part of the General Rating Formula for Mental Disorder (general formula). Under DC 9411, a 50 percent disability rating is warranted when the Veteran experiences 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 in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. A 100 percent disability rating 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name.38C.F.R. §4.130. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi,16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating Id. Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki,713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. Therefore, VA must consider all symptoms of a veteran’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-5. Id. In this case, after evaluating the evidence of record, the Board concludes that the Veteran is entitled to an initial rating of 50 percent, but no higher, throughout the appeal period. The medical and lay evidence of record reflects that the Veteran has symptoms that are likely severe enough to cause reduced reliability and productivity. The Veteran underwent a VA examination in December 2015, where the examiner noted that his PTSD is primarily manifested by irritable behaviors and angry outbursts. During the examination, the Veteran reported that he is “fearful he may lose his job as a result of his poor anger control.” He reported that his condition interferes with work responsibilities and causes arguments with coworkers. The examiner found that the Veteran occasionally gets angry, and he is unable to complete work responsibilities due of his anger. In a brief submitted in August 2020, the Veteran’s representative contends that the Veteran had an angry outburst when contacted by the VA to schedule a medical appointment, and such a behavior led to cancellation of his appointment. Considering the totality of the evidence of record, the Veteran likely has impaired judgement to the extent he has angry outbursts that affect his relationships with coworkers and cause cancelation of medical appointments. In addition, the Veteran’s representative contends that the Veteran has difficulties establishing and maintaining relationships. The Board agrees that the Veteran’s difficulty getting along with coworkers, and his report of being a “loner with no frequent social interaction” shows that he has difficulties in establishing and maintaining effective work and social relationships. Furthermore, the December 2015 VA examiner concluded that the Veteran’s PTSD is manifested by disturbed motivation and mood. He also has occasional nightmares, poor concentration, hypervigilance, as well as avoidance of conversation or things that are reminders of the trauma. Reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, the Board concludes that the Veteran’s PTSD symptoms result in impaired judgment, disturbance of motivation and mood, as well as difficulty in establishing and maintaining effective relationships. Thus, the Veteran’s PTSD creates a disability picture that approximates a level of impairment contemplated by a 50 percent rating. However, the Board finds that for the entire appeal period, a rating of 70 percent is not warranted because the Veteran’s symptoms are fully contemplated by 50 percent or lower rating. In other words, the totality of the evidence of record does not reflect that the Veteran’s PTSD is manifested by symptoms of such severity, frequency and duration to cause deficiencies in most areas. The evidence does not show that the Veteran has deficiency in the area of mood that is consistent with a 70 percent rating. While the December 2015 examination found that the Veteran has anhedonia, there is no evidence that he has near-continuous panic attacks or depression affecting the ability to function independently. Nor does the evidence reflect that the severity of his anhedonia is on par with continuous panic attacks or depression affecting the ability to function independently. VA treatment records show that the Veteran consistently denied having depression or thoughts of suicide in May 2017, August 2019, January 2020, and June 2020. The Veteran’s primary PTSD symptom is his anger that reportedly causes “occasional impairment” and “occasional arguments with co-workers.” See December 2015 VA examination. In other words, the Veteran has mood disturbance that causes no more than reduction in reliability and productivity. The frequency and severity of his symptoms do not rise to the level of causing mood deficiency as contemplated by a 70 percent rating. Furthermore, while the evidence shows that the Veteran has difficulty establishing and maintaining effective relationships, it does not show an inability to do so. That is, as noted above, the Veteran’s primary symptom reportedly causes “occasional arguments” with coworkers. The frequency of these arguments with his coworkers, however, does not rise to the level of establishing that the Veteran is unable to form work or social relationships. The Board is cognizant of the fact that the Veteran is “increasingly withdrawn” and does not participate in social activities, which again is consistent with someone who has difficulties establishing and maintaining effective social relationships. Additionally, while the evidence shows that the Veteran is divorced and does not have a good relationship with his daughter, he did not attribute his relationship difficulties to his PTDS symptoms. In fact, the Veteran expressed that he does not have a relationship with his daughter because “she felt ‘abandoned’ when the [Veteran] was serving overseas in Iraq” See December 2015 VA examination. When viewed holistically, the Veteran’s symptoms reflect that he has difficulty in establishing and maintaining effective work and social relationships, which is fully contemplated by 50 percent rating. Furthermore, the December 2015 examiner noted that the Veteran’s PTSD symptoms impact his work particularly during “idle time or moments when he is trigged by environmental cue.” This finding is not consistent with difficulty in adapting to stressful circumstances. To the contrary, the Veteran’s symptoms appear to be triggered during down time. Therefore, the Board concludes that the Veteran’s PTSD symptoms cause no more than occupational and social impairment with reduced reliability and productivity. In sum, the preponderance of the evidence of record does not show that the Veteran’s PTSD symptoms are of such frequency, severity and duration to cause deficiency in the area of work and family relations. To the extent the Veteran has angry outbursts or irritable behaviors, he has some impairment of judgement. The Board has considered the Veteran’s representative’s contention that the Veteran has impaired impulse control. The evidence, however, does not show that his irritability is unprovoked or that it results in periods of violence. Therefore, the Board concludes that the Veteran’s irritable behaviors and angry outbursts are not consistent with impaired impulse control contemplated under the 70 percent rating criteria. The severity of the Veteran’s impaired judgement does not rise to the level of causing deficiency in this area. Furthermore, the preponderance of the evidence of record does not reflect deficiency in the area of thinking. VA treatment records from January 2016 reflect that the Veteran was fully oriented. The record does not have evidence that shows spatial disorientation, obsessional rituals which interfere with routine activities, or intermittently illogical, obscure, or irrelevant speech. Therefore, the Veteran’s symptoms do not create deficiencies in the area of thinking to the level contemplated by a 70 percent rating. The Board has considered the Veteran’s representative’s arguments, as well as the JMR regarding the findings of the July 2009 neuropsychological evaluation that reflects memory loss in the area of speech and language. Notably, the Veteran also reported concerns about memory problems in February 2010. The Board is cognizant that 38 C.F.R. §§ 4.1 and 4.2 and 4.41 require VA adjudicators to view each disability “in relation to its history” to “accurately reflect the elements of disability present,” respectively. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was “only entitled to disability compensation for the period after the date he filed his original claim for benefits,” VA regulations still require the disability to be “evaluated in light of its whole recorded history”). In this case, the Board notes that while the July 2009 neuropsychological evaluation reflects memory deficits, the record also includes VA treatment records from March 2015, November 2014, May 2014 that show that the Veteran denied having memory loss. Although the Veteran had memory problems that were expected to get worse over time in 2009, the treatment records from the time period that approximates the appeal period shows that he denied the same. Notwithstanding, the 50 percent disability rating assigned does contemplate short-and-long term memory, as well as some speech impairment. In summary, reviewing the evidence in light most favorable to the Veteran and resolving reasonable doubt in his favor, the preponderance of the probative lay and medical evidence shows that the Veteran’s PTSD produces symptoms that approximate the level of severity, duration, or frequency contemplated by a 50 percent rating, but no higher. REASONS FOR REMAND 2. Entitlement to an initial rating higher than 20 percent for left shoulder impingement syndrome is remanded. 3. Entitlement to an initial rating higher than 20 percent for left shoulder recurrent dislocation-scapulohumeral joint is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to an increased rating for left shoulder disabilities. Stegall v. West, 11 Vet. App. 268, 271 (1998). That is, the Board’s remand directive asked the examiner to conduct range of motion testing in passive motion, in weight-bearing, and in nonweight-bearing. The examiner was also asked to explain if it not possible to provide a specific measurement. The Veteran underwent a VA examination in March 2020 pursuant to the Board’s directive. The examiner noted that the Veteran has pain on passive motion and non-weight bearing position. The record has an opinion from the examiner that states that “there is significant pain with any testing of the shoulder and [range of motion] maneuvers were limited in order to not produce painful motions for the Veteran.” The examination report does not provide measurement of the Veteran’s passive and nonweight bearing range of motion testing. Therefore, it does not comply with the requirements of in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In addition, the Board notes that the May 2015 VA examination reflected that there was no history of recurrent dislocation of the glenohumeral (scapulohumeral) joint, but the March 2020 VA examination found otherwise. Upon remand, the examiner should clarify whether the recurrent dislocation of the scapulohumeral joint is something that occurred after the May 2015 VA examination. For these reasons, the Board finds that a remand to obtain an addendum opinion is necessary before the claims can be adjudicated. 4. Entitlement to an initial rating higher than 10 percent from April 6, 2015 to February 18, 2020, and higher than 20 percent thereafter, for left ulnar neuropathy is remanded. The Veteran underwent VA examinations in May 2015 and March 2020. During both examinations, a diagnosis of ulnar neuropathy was made. Both examination reports referenced an electrodiagnostic impression from March 2014 that found that the Veteran possibly has radial nerve injury in addition to ulnar neuropathy. Although the March 2020 examiner noted that the Veteran has incomplete paralysis of the upper radicular group, there was no further indication concerning whether the Veteran demonstrated impairment involving any of the nerves in the upper radicular group (long thoracic nerve, median nerve, radial nerve, musculocutaneous nerve, axillary nerve). Notably, the March 2020 examiner also indicated that the Veteran has mild incomplete paralysis of ulnar never and the upper radicular group; however, the ulnar nerve is not part of the lower radicular group. For the purposes of rating the nerves affecting the upper extremities, combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, to consider radicular group ratings. See 38 C.F.R. § 4.124a , Diseases of the Peripheral Nerves, Note following DC 8719. In other words, separate ratings may not be assigned when evaluating an upper extremity peripheral neuropathy disability. In this case, the record does not clearly establish the complete nature of the nerve involvement for the Veteran’s impairment. Therefore, an addendum opinion is necessary before the claim can be adjudicated. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the March 2020 VA examiner. If that examiner is unavailable, request the opinion from another qualified clinician. An in-person examination is not required unless the clinician determines it is necessary. The examiner is asked to provide an opinion that address the following: (a) What was the Veteran’s range of motion during active motion, passive motion, and with weight-bearing and without weight-bearing? Please note that it is not sufficient to merely indicate whether or not pain was present during the range of motion testing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (b) Has the Veteran’s recurrent dislocation of the glenohumeral (scapulohumeral) joint been present since April 4, 2015? 2. Obtain an addendum opinion from the March 2020 VA examiner. If that examiner is unavailable, request the opinion from another qualified clinician. An in-person examination is not required unless the clinician determines it is necessary. After reviewing the claims file in its entirety, the examiner is asked to provide opinions that address the following: (a.) Identify all impaired nerves in the Veteran’s left upper extremity. (b.) For each nerve identified in (a.), describe the severity of the symptoms caused by the functional impairment, to include any complete or incomplete paralysis or atrophy of the associated muscles. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Solomon 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.