Citation Nr: 21001048 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-29 729 DATE: January 6, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for PTSD is denied. REMANDED Entitlement to a disability rating in excess of 50 percent for anatomical loss of the right eye is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for PTSD have not been 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 CONCLUSION The Veteran served on active duty in the United States Army from September 1965 until his honorable discharge in December 1967. During his service, the Veteran earned the Purple Heart, Republic of Vietnam Campaign Medal with Device (1960), Vietnam Service Medal, National Defense Service Medal, Combat Infantryman Badge, and Expert Rifle (M-14) Badge. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Chicago, Illinois Regional Office (RO) of the United States Department of Veterans Affairs (VA). In December 2019, the Veteran and his spouse testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in Chicago, Illinois. A transcript of the hearing has been associated with the record on appeal. In February 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain updated private treatment records for the Veteran’s eye disability and to obtain updated VA examinations for both the Veteran’s eye disability and mental health disability to determine the current severity of his disabilities. In response, in July 2020, the RO obtained a mental health VA examination. The Board notes that the Veteran was scheduled for an eye examination on March 18, 2020. However, the appointment was cancelled for an unknown reason. The record does not indicate if the Veteran cancelled the appointment or the provider cancelled the examination. The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to a disability rating in excess of 50 percent for PTSD on appeal. However, the Board finds that there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to a disability rating in excess of 50 percent for his entitlement to a disability rating in excess of 50 percent for anatomical loss of the right eye on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, although the RO sent the Veteran a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs, and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veteran Affairs for Weeden Eye Clinic in the February 2020 correspondence, the only response received from the Veteran was a March 2020 Statement in Support of Claim (VA Form 21-4138) indicating that the Veteran did not have private treatment for his service-connected PTSD. However, there was no response on private treatment for his service-connected anatomical loss of the right eye. Furthermore, as will be addressed in greater detail below, the RO failed to obtain a VA eye examination. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 1. Entitlement to a disability rating in excess of 50 percent for PTSD The Veteran asserts that he is entitled to a disability rating in excess of 50 percent for his service-connected PTSD. 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). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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 is assigned 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; or memory loss for names of close relatives, own occupation or own name. VA treatment records, the July 2020 VA examination, and the Veteran’s lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, suspiciousness, mild memory loss (such as forgetting names, directions, or recent events); and symptoms associated with a 50 percent rating (difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); difficulty in establishing and maintaining effective work and social relationships). He also had symptoms that are not listed with a specific rating, such as always looking for the exit when he is out. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. The Veteran reported that these symptoms were not present daily, but would increase in severity when he goes out. Further, the unlisted are similar to suspiciousness, which is contemplated by the assigned 50 percent rating, or lower. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity. Mental status examinations in VA treatment records and the July 2020 VA examination indicate that the Veteran had occupational and social impairment with reduced reliability and productivity. During the February 2020 VA examination, the Veteran reported that his sleep has significantly improved with his medication, that he generally sleeps soundly, but notes occasional periods of restlessness with sporadic nightmares of his experiences in Vietnam, which is a more recent development. The Board notes that the Veteran did not experience symptoms contemplated by a 70 percent rating and the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran’s symptoms were either contemplated by or more consistent with a 50 percent rating, or lower. Further, April 2016 VA treatment records show the Veteran reported that there has been no resumption of depressive and anxiety symptoms and the Veteran’s VA treatment history demonstrates mild or transient symptoms. In fact, during the July 2020 VA examination, the Veteran reported that his mood is improved on his medications with only mild and occasional breakthrough symptoms. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 50 percent for anatomical loss of the right eye is remanded. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. As noted above, in February 2020, the Board remanded the case to the RO to obtain updated private treatment records for the Veteran’s eye disability and to obtain an updated VA examination for the Veteran’s eye disability. The record reflects that the Veteran’s VA examination as cancelled. However, the record does not contain the reason for the cancellation and an examination is required. The RO noted that the Veteran advised that there are no private treatment records for his PTSD, but there is no record of any attempts to obtain the private treatment records for the Veteran’s eye disabilities as directed by the February 2020 Board remand. As noted above, the Board remanded this matter in February 2020 to obtain a VA examination and to obtain private treatment records. The record indicates that in a February 2020 letter, the Veteran was directed to return the enclosed VA Form 21-4142 for private treatment records from Weeden Eye Clinic. Although the Veteran replied that he does not have private treatment records for his acquired psychiatric disability, there appears to be no response concerning his private treatment records for his service-connected eye disability. Therefore, the Veteran is hereby notified that the duty to assist is a two-way-street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Weeden Eye Clinic. Make two requests for the authorized records from Weeden Eye Clinic, unless it is clear after the after the first request that a second request would be futile. 2. Schedule the Veteran for an updated VA eye examination to determine the current severity of the Veteran’s visual acuity due to his service-connected anatomical loss of the right eye. Written notification must be provided to the Veteran and documented within the file. If the VA eye examination is cancelled, or the Veteran fails to appear for the examination, it must be so stated in the record as to why the examination was cancelled and/or if the Veteran failed to appear for the examination. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, 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.