Citation Nr: 21000906 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 11-27 941 DATE: January 6, 2021 ORDER Entitlement to a disability rating of 70 percent, but no higher, for post-traumatic stress disorder (PTSD) throughout the appeal period is granted. Entitlement to a disability rating in excess of 10 percent for painful left thumb scar is denied. Service connection for a back disability is granted. REMANDED Service connection for a left shoulder condition is remanded. Service connection for a right shoulder condition is remanded. Service connection for musculoskeletal pain, to include fibromyalgia and bilateral knee disability is remanded. FINDINGS OF FACT 1. Throughout the appeal, the Veteran’s PTSD manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. Throughout the appeal, the Veteran has had one painful scar with a total area of 0.16 square centimeters on the left thumb. 3. The Veteran’s back disability had its onset in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 70 percent, but no higher, for post-traumatic stress disorder (PTSD) throughout the appeal period have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2018). 2. The criteria for entitlement to a disability rating in excess of 10 percent for painful left thumb scar have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. § 3.102, 4.118 Diagnostic Code (DC) 7804 (2018). 3. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1973 to May 1980 and May 1981 to October 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in March 2018. The issues of service connection for a back disability, neck disability, bilateral shoulder condition, and musculoskeletal pain were remanded by the Board in May 2018 for additional development. In the same May 2018 Board decision, the Board dismissed the claim for service connection for substance use disorder (SUD) and the claim for an increased rating for PTSD and granted a 10 percent rating for the left thumb scar for the period prior to September 28, 2015. The Veteran appealed this portion of the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In March 2019, the Court granted a Joint Motion for Partial Remand (JMPR) and returned the issues to the Board for readjudication. In compliance with the JMPR, the Board remanded the issues for additional development in February 2020. The Board notes that a March 2020 rating decision granted service connection for a neck disability and a September 2020 rating decision granted service connection for substance use disorder as secondary to PTSD. As these claims for service connection have been granted in full, they are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Finally, the Board notes that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, here the evidence reveals that the Veteran has not reported that his service-connected disability on appeal precludes substantially gainful employment. See Hearing Testimony, March 2018. Therefore, the issue of entitlement to a TDIU is not before the Board. 1. Entitlement to a disability rating of 70 percent, but no higher, for post-traumatic stress disorder (PTSD) throughout the appeal period. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD is rated at 30 percent, effective November 4, 2009, at 50 percent, effective September 28, 2015, and at 70 percent, effective April 22, 2020. His PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 50 percent rating when the evidence shows 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 rating is warranted for 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 that 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent 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 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. 38 C.F.R. § 4.130, Diagnostic Code 9434. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather 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, 443 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran’s service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. The Board notes that in a United States Court of Appeals for Veteran’s Claims’ (Court) decision, the Court concluded that there are no descriptors, modifiers, or indicators as to suicidal ideation in the 70 percent criteria. The presence of suicidal ideation alone, that is, a Veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas. Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017). As the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the code, the Board must consider all symptoms of a claimant’s condition that affect occupational and social impairment. Mauerhan, 16 Vet. App. at 443. If the evidence demonstrates that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the Diagnostic Code, the appropriate, equivalent rating will be assigned. Id. During the August 2010 VA examination, the Veteran reported difficulty sleeping, substance use, nightmares, and flashbacks. He stated that he is married to his second wife with one child and has had several jobs since discharge from service. He stated that he left his first three jobs because he was told that he does not get along with people and they say he is mean. The examiner noted that the Veteran was difficult to interview as his speech was difficult to understand and his thoughts were poorly organized. The examiner noted that the Veteran’s testing scores appear to be “highly elevated” in comparison to his clinical presentation leading to the conclusion that his test scores are exaggerated. The examiner opined that the Veteran’s diagnosed substance use is less likely than not secondary to his PTSD. Instead, it is independent of his PTSD and not related to his experiences in service as the Veteran was a heavy drinker prior to the stressful events he described. During the October 2015 VA examination, the examiner diagnosed the Veteran with PTSD, unspecified depressive disorder, alcohol use disorder, and mild neurocognitive disorder. The examiner noted that the Veteran’s chronic neck, shoulder, and back pain are relevant to the understanding and management of his mental health disorder. The examiner also stated that it is not possible to differentiate what symptoms are attributable to each diagnosis as there is considerable overlap of mood and sleep, which could be attributed to chronic pain, alcohol use, and/or PTSD. The examiner summarized the Veteran’s level of impairment as occupational and social impairment with reduced reliability and productivity. Symptoms noted at the examination include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran was clean and casually dressed, his mood was slightly depressed, with no delusions or hallucinations, no reports of suicidal ideation, and his judgment and insight were limited. However, the examiner stated that the Veteran’s ability to converse normally and answer questions was compromised, and he would not have been able to finish the interview if his wife was not present to answer questions. The examiner noted that the Veteran is working full time with no evidence of compromised work performance and has never been disciplined. In April 2020, a VA examiner diagnosed the Veteran with PTSD, unspecified depressive disorder, alcohol use disorder-moderate, and mild neurocognitive disorder-unspecified. The examiner stated that it would be impossible to differentiate the Veteran’s symptoms without resorting to mere speculation. The examiner noted that the Veteran has occupational and social impairment with reduced reliability and productivity and symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. The examiner noted that the Veteran is capable of managing his financial affairs and his health symptoms would likely cause moderate discomfort when interacting with other people, and moderately reduce communication effectiveness and rigidity. The Veteran did not suffer from delusions or hallucinations at the time of the examination. In September and October 2010, several lay statements were submitted detailing the Veteran’s continued symptoms since service. Lay statements from the Veteran’s friends of 20 years noted that the Veteran and his wife have told them about the Veteran’s symptoms of constant pain, headaches, difficulty sleeping, night sweats, depression, difficulty being around people, having a short temper, excessive alcohol use, and difficulty carrying out daily obligations. The Veteran’s wife submitted a statement in September 2010, which stated that before the Veteran left for the Gulf War, he was a big presence in the household, was kind and outgoing, easily made friends, and enjoyed socializing. After returning from the Gulf War, the Veteran’s status at home was non-existent. He would have bouts of depression for six or seven months at a time and would neglect his personal hygiene and daily chores. He no longer wished to communicate with family and friends, experiences constant mood swings, difficulty sleeping, night sweats, and excessively uses alcohol. She noted that the Veteran’s disability has affected their marriage and they no longer go to community functions together because the Veteran does not want to be near crowds. In an October 2010 statement from the Veteran’s workplace, it was noted that the Veteran is an asset to the company but the Veteran has complained on duty as well as missed work as a result of headaches, which can become a challenge in the workplace. In an October 2010 statement, a fellow servicemen, who served with the Veteran for 25 years, noted that the Veteran regularly socialized and enjoyed life before serving in the Gulf War, but after the war the Veteran started to distance himself and would not answer the phone when he called. In the Veteran’s October 2010 notice of disagreement, the Veteran stated that he is not able to retain or process information or complete tasks. He stated that he can no longer make friends or maintain relationships with people outside of the household, and he experiences paranoia and mood swings. Considering the medical and lay evidence, the Board finds that the Veteran’s disability more closely approximates the picture contemplated by the 70 percent rating throughout the appeal. The medical and lay evidence demonstrates that the Veteran continually suffers from occupational and social impairment with reduced reliability and productivity with symptoms of depression, chronic sleep impairment, impairment of short and long term memory, difficulty in establishing and maintaining effective work and social relationships, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s PTSD shows total occupational and social impairment sufficient to warrant a rating of 100 percent. The evidence does not show symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or any symptomatology otherwise consistent with total occupational and social impairment. In light of the foregoing, the Board finds that a rating of 70 percent, but no higher, is warranted throughout the appeal period. 2. Entitlement to a disability rating in excess of 10 percent for painful left thumb scar. The Veteran asserts that his left thumb scar is worse than the current rating contemplates. He contends that his thumb throbs and has limited range of motion due to the scar. See Notice of Disagreement, October 2010. The Veteran’s painful left thumb scar is rated at 10 percent under DC 7804, effective November 4, 2009. The Veteran’s left thumb scar also has a noncompensable rating under DC 7802, effective November 1, 1994. Under DC 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating; three or four scars that are unstable or painful scars warrants a 20 percent rating; and five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118, DC 7804. Note (1) states an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) states scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC, when applicable. In addition, DC 7805 instructs to evaluate any disabling effect(s) not considered in a rating provided under DCs 7800-04 under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. During the September 2015 VA examination, the Veteran reported that his scar has never healed and is tender to touch. The examiner noted that the Veteran has one painful and unstable scar on his left thumb pad which is 0.4 cm x 0.4 cm in size (total area is 0.16 cm2). The examiner stated that the scar does not result in limitation of function or functional impact. In a June 2020 VA examination, the examiner noted that the Veteran’s left thumb scar is painful on examination with a small break in the skin of 0.4 cm. The underlying pink tissue is without erythema or drainage, the scar does not adhere to underlying tissue, and no keloid formation or foreign object was noted. The examiner stated that he would not classify it as an unstable scar, but rather one that has just had self-trauma inflicted to the area. The examiner observed the Veteran pushing himself up off of a chair with his left thumb with no corresponding pain and holding his paperwork in his left hand without subjective corresponding pain. The Veteran’s left thumb scar was measured at 0.4 cm x 0.4 cm, was tender to palpation, but not unstable, not due to burns, and does not have underlying soft tissue damage. Considering the foregoing, the Board finds that a 10 percent disability rating is appropriate for the Veteran’s service-connected left thumb scar. A 20 percent rating is not warranted because the Veteran only has one painful scar. See VA examination, September 2015 and June 2020. The Board has considered whether an alternative evaluation under Diagnostic Codes 7800 through 7805 would result in a more favorable outcome for the Veteran. However, the Veteran does not have scars or other disfigurements located on the head, face, or neck, does not have a scar associated with underlying tissue damage, and does not have a scar with an area of 144 square inches (929 sq. cm.) or greater. Therefore, the evidence of record fails to show symptomatology which merits a higher evaluation for the Veteran’s skin condition under those Diagnostic Codes. The Board acknowledges the Veteran’s contentions and finds the Veteran competent. See Hearing Transcript, March 2018. However, as the most probative evidence of record is against a rating in excess of 10 percent, entitlement to a higher rating for the Veteran’s service-connected painful left thumb scar is not warranted. 3. Service connection for a back disability. To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Veteran seeks service connection for a back disability, which he contends began in service and has been recurrent since that time. The Veteran has a diagnosis of lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome, and bilateral lower extremity radiculopathy. See VA Examination, July 2019. Service treatment records from January 1985 note treatment for low back pain with a diagnosis of lumbar strain. At the March 2018 hearing, the Veteran competently testified that he was involved in a driving incident in 1991 in Kuwait that injured his right and left shoulder, back, neck, and knees. He stated that his current low back condition is related to the driving accident. See also Medical Treatment Record, January 1995. In the October 2010 notice of disagreement, the Veteran stated that he has experienced back pain since the accident. The Veteran’s wife submitted a statement in September 2010 noting that since the Veteran returned from the Gulf War he has complained about lower and upper back pain and aching joints. She stated that the Veteran takes Aleve and Advil to try to alleviate the pain, but it does not help. A September 2010 statement submitted by the Veteran’s friends of 20 years also noted that the Veteran and his wife have told them about how the Veteran complains of constant back pain. The Veteran is competent to report the onset and continuation of his back-disability symptoms and the Board finds his testimony credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the July 2019 VA examiner opined that the Veteran’s current back disability was not related to service; however, because the evidence shows that the Veteran’s back disability had its onset in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). REASONS FOR REMAND 1. Service connection for a left shoulder condition is remanded. 2. Service connection for a right shoulder condition is remanded. 3. Service connection for musculoskeletal pain, to include fibromyalgia and bilateral knee disability is remanded. During the March 2018 hearing, the Veteran competently testified that the 1991 driving incident he was involved in injured his right and left shoulders, back, neck and knees. The Veteran’s service treatment records note complaints of knee and shoulder problems. At the hearing, the Veteran and his wife both asserted that they believe a VA examination may reveal a diagnosis of fibromyalgia that would explain the multiple joint pain. The Veteran’s wife also asserts that environmental exposures during service contributed to his multiple joint disabilities. A July 2019 VA examination noted that the Veteran complains of bilateral shoulder pain and has a diagnosis of right shoulder strain. The examiner stated that the January 1995 examination noted a normal shoulder examination and stated that the Veteran’s shoulder pain is being referred to left shoulder from cervical spine issues. The same examiner also noted diagnoses of right knee strain, left knee arthritis, degenerative, and bilateral knee patellofemoral pain syndrome. The examiner stated that C-file records report evaluation for fibromyalgia, which has never been diagnosed and the Veteran denied the kind of generalized, muscle pain characteristic of that disorder. Rather he complained of severe pain that radiates from his neck and back down his legs and arms. The examiner stated that the Veteran’s history and symptoms are consistent with his known diagnosis of degenerative disc disease of the spine and patellofemoral pain syndrome. They are related to joints rather than muscle groups. In light of the above grant for service connection for a back disability, the Veteran’s contentions, and the examiner’s findings, the Board finds that an opinion is needed to address whether the Veteran’s bilateral shoulder condition and musculoskeletal pain, to include fibromyalgia and bilateral knee disability are related to the Veteran’s service-connected back disability, service-connected neck disability, and their corresponding radiculopathy. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptoms of his right shoulder and left shoulder problems and musculoskeletal pain, to include fibromyalgia and right knee and left knee problems. The Veteran should be afforded an appropriate amount of time to submit this lay evidence. 2. Schedule the Veteran for appropriate VA examinations (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of the symptoms of his right and left shoulder disability and musculoskeletal pain, to include fibromyalgia and bilateral knee disability. For any identified impairment or disorder, the examiner should opine whether it is at least as likely as not that the disability had its onset in or is otherwise related to service. The examiner should specifically address if any identified impairment or disorder is caused by a service-connected disability (to include the now service-connected back disability), or is aggravated by a service-connected disability. In reaching a conclusion, the VA examiner must acknowledge and discuss the lay and medical evidence of record, including the Veteran’s testimony regarding his in-service driving accident and his symptoms since that time. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.