Citation Nr: 21001889 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-03 588 DATE: January 12, 2021 ORDER Entitlement to an initial 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) for the period prior to October 16, 2019 is granted. REMANDED Entitlement to a rating in excess of 20 percent for lumbar spine intervertebral disc syndrome, lumbar strain and scoliosis is remanded. Entitlement to service connection for a bilateral foot disability, to include pes planus, plantar fasciitis and hallux valgus is remanded. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. FINDING OF FACT During the period prior to October 16, 2019, the Veteran’s PTSD was characterized by recurrent suicidal ideation, persistent depression and anxiety with panic attacks, anger and irritability with difficulty controlling emotions, obsessions and compulsions, and mild memory loss. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) for the period prior to October 16, 2019 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1994 to April 1998. This matter came before the Board of Veterans Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a November 2018 hearing. The transcript of the hearing is of record. A November 2018 Board decision dismissed the issues of service connection for a cervical spine disability and increased ratings for left and right lower extremity radiculopathy as withdrawn at the hearing. The decision remanded the remaining issues on appeal for further development. An October 2020 rating decision increased the Veteran’s PTSD rating from 50 to 100 percent effective October 16, 2019. The maximum rating assignable for that disability has therefore been granted for the period after October 16, 2019 and the rating for that period is therefore not before the Board. However, because higher ratings for this disability are assignable during the period prior to October 16, 2019 and the Veteran is presumed to seek the maximum available benefit, the issue of an increased rating for PTSD prior to October 16, 2019 remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to a rating in excess of 50 percent for PTSD for the period prior to October 16, 2019 The Veteran contends that she is entitled to an increased rating for PTSD, which is currently rated at 50 percent for the period prior to October 16, 2019. For the reasons that follow, the Board finds that a 70 percent rating, but no higher, is warranted. Ratings are assigned according to the manifestation of symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the 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 rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Neither the number of symptoms nor the type of symptoms controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative, and the Board must draw fact-based conclusions as to whether those symptoms, and their severity, frequency and duration, have caused the level of occupational and social impairment associated with a given rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board notes that the presence of suicidal ideation alone conceivably might cause occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. Bankhead, 29 Vet. App. at 19. For the entire period on appeal, the Veteran has been rated under DC 9411 for PTSD, which is evaluated under the General Rating Formula for Mental Disorders. Under the DC, the criteria for a 50 percent rating are 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 and social relationships. The criteria for a 70 percent rating are 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 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. The criteria for a 100 percent rating are 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 of 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, DC 9411. August 2012 VA group therapy notes stated that the Veteran was alert and oriented, with normal speech and thought content and no suicidal or homicidal ideation. October 2012 VA treatment records noted feelings of depression and hopelessness. The provider found low mood with moderate range of affect and clear and coherent speech. The provider did not find suicidal or homicidal ideation. August 2013 VA treatment records noted depressive symptoms of poor sleep and appetite, weight loss, inadequate hygiene, being withdrawn/isolative, suicidal ideation and depressed mood. The provider also noted PTSD symptoms of recurrent intrusive thoughts of trauma, nightmares, flashbacks, irritability/hypervigilance and isolation. February 2014 VA treatment records noted problems sleeping, crying spells and mood swings. The provider found that the Veteran was alert and oriented, had no suicidal or homicidal ideation, and was tearful with depressed mood and sad affect. She reported nightmares, flashback and vivid dreams but denied perceptual disturbances. February 2017 VA treatment records noted that the Veteran’s sleep was worse, and she was mildly depressed and reporting problems with concentration, low energy, thoughts of hopelessness/helplessness and that she sometimes felt worthless. She denied suicidal and homicidal ideation. She reported feeling more anxious and hypervigilant and that she had her most recent panic attack the previous week when she heard a loud noise. She reported having panic attacks every two weeks. July 2017 VA treatment records noted symptoms of depressed mood, decreased interest/pleasure in activities, loss of energy, anxiety, irritability, recurrent recollections/dreams/nightmares, problems sleeping and hypervigilance. April 2018 VA treatment records noted symptoms of depressed mood, lowered interest in activities, loss of energy, isolation, anxiety, irritability, recurrent dreams/nightmares, anger problems, hypervigilance and exaggerated startle reaction. The provider found that the Veteran was oriented to time/place/person, with normal speech and thoughts and no suicidal or homicidal ideation. August 2018 VA treatment records noted symptoms of depressed mood, insomnia, decreased interest/pleasure in activities, anxiety, panic attacks, obsessions and compulsions, hypervigilance, exaggerated startle reaction and recurrent nightmares. The provider found that the Veteran was appropriately dressed, well-groomed, alert and oriented to time/place/person, with normal speech, affect congruent with mood and coherent/logical thoughts. The provider noted that the Veteran denied suicidal ideation “today.” An October 2019 VA examination noted the Veteran’s reports of anxiety, depression and cycles of panic and depression with sleep impairment. The provider stated that the Veteran no longer had “active” suicidal ideation. The examiner found symptoms of depression, anxiety, suspiciousness, near-continuous panic/depression, chronic sleep impairment, mild memory loss, problems with complex commands, disturbances of motivation and mood, difficulty with work/social relationships and stress, an inability to maintain relationships, obsessional rituals, impaired impulse control, spatial disorientation and disorientation to time/place. The provider also found that the Veteran had flattened affect and no sign of thought disorder. At the outset, the Board finds that the VA examination is adequate for appellate review. There is no evidence that the examiner was not competent or credible, and as the report was based on the Veteran’s statements, in-person examination and the examiners’ observations, the Board finds it entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). At the November 2018 Board hearing, the Veteran testified that she had symptoms of anger outbursts and problems staying in control of her emotions. She also reported panic attacks due to stress once or twice a week. She stated that she had problems with short term memory that made it hard to work, such as remembering phone numbers or where paperwork was located. She also reported that she had battled suicidal thoughts on a regular basis for the past several years. She stated that she had both thoughts and plans regarding suicide but had not reported it to providers as she had a child at home and did not want anything to happen. The Board notes that the Veteran is competent to report lay-observable symptoms she experiences such as anger, panic and suicidal ideation and accords her statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds her to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Upon review of the above, the Board finds that the evidence shows that the Veteran’s overall disability picture during the period prior to October 16, 2019 more nearly approximated the severity required for a 70 percent rating. Significantly, the Veteran submitted competent and credible lay evidence that she struggled with suicidal ideation throughout the period on appeal. While the Veteran denied suicidal ideation to her VA providers, the October 2019 VA examiner found that she “no longer” had active suicidal ideation, indicating that suicidal ideation had previously been present. The Veteran has also explained her reason for denying suicidal ideation to her providers and the Board has found her explanation to be credible. Neither the number of symptoms nor the type of symptoms controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative, and the Board must draw fact-based conclusions as to whether those symptoms, and their severity, frequency and duration, have caused the level of occupational and social impairment associated with a given rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). As noted above, suicidal ideation alone may cause occupational and social impairment in most areas, consistent with a 70 percent rating. The competent evidence also shows that the Veteran has had persistent, continuous depression and anxiety with panic attacks throughout the period on appeal. August 2018 VA treatment records noted obsessions and compulsions, indicating that the obsessional rituals found at the October 2019 examination were also present during the earlier period. The record also shows that the Veteran had impaired impulse control with irritability and anger. The Veteran’s providers repeatedly found symptoms of anger and irritability, and the Veteran reported problems controlling her emotions at the November 2018 hearing. The Veteran did not exhibit symptoms such as illogical speech during the period on appeal, but the Board notes that the symptoms list in the general rating formula is non-exhaustive and finds that the overall severity of the Veteran’s symptoms, particularly her history of suicidal ideation, warranted a 70 percent rating. The Board finds that the preponderance of the evidence is against an evaluation above 70 percent for the period on appeal. As noted above, the Veteran’s PTSD has been characterized by persistent depression and anxiety, suicidal ideation, anger and irritability, frequent panic attacks, problems with stress and maintaining work and social relationships, all of which are encompassed by the 70 percent rating already assigned. The medical evidence of record from the period does not support the conclusion that the Veteran’s overall disability picture more nearly approximated the frequency, severity, or duration of psychiatric symptoms required for a 100 percent disability evaluation based on total occupational and social impairment. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. That is, the competent evidence of record does not show that the Veteran experienced: gross impairment in thought processes or communication, 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. While the Veteran submitted competent and credible testimony of recurrent suicidal ideation during the period on appeal, the Board finds that the record does not support the conclusion that there was persistent danger of hurting herself or others. The record indicates that the Veteran has no history of suicide attempts. Her providers repeatedly found that she was not at risk of harming herself or others. There is also no indication in the record, and the Veteran does not contend, that she had suicidal intent during the period on appeal. While she reported suicidal ideation with plans, the Veteran did not report suicidal intent and also expressed concern for the well-being of the child for whom she was the sole support. There is also no evidence of homicidal ideation. The Board therefore finds that the evidence does not indicate that the Veteran had persistent danger of hurting herself or others during the period prior to October 16, 2019. The record also does not contain evidence of the other symptoms associated with a 100 percent rating. While the Veteran reported problems with short term memory that made completing work tasks difficult, the record is silent for memory loss equivalent to forgetting her own name or those of close relatives. The Board also notes that the October 2019 VA examination characterized the Veteran’s memory loss as “mild.” The record is also silent for other impairments of thought processes or communication. The Veteran’s speech was consistently noted to be normal and thought processes were consistently noted to be logical and linear. There is also no indication that she exhibited grossly inappropriate behavior. While the October 2019 VA examination found that the Veteran had spatial disorientation and disorientation to time and place, the Board notes that all of the treatment records from the period on appeal found that the Veteran was alert and oriented to time, person and place. There is therefore no basis upon which the Board can conclude that disorientation to space, time or place was present during the period prior to October 16, 2019. The Board therefore finds that the evidence of record from the period on appeal does not support the conclusion that the Veteran’s psychiatric disability caused total social and occupational impairment during the period. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran’s disability in her favor. The Board finds that the Veteran’s overall picture during the period on appeal more nearly approximated that of a 70 percent disability rating, and her symptoms did not more nearly reflect the frequency, severity, and duration of symptoms associated with the 100 percent rating. A rating of 70 percent, but no higher, is therefore warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for lumbar spine intervertebral disc syndrome, lumbar strain and scoliosis is remanded. The November 2018 Board decision requested a new VA lumbar spine examination, and the remand directives specifically asked that if pain was noted on range of motion testing, the examiner should note the point pain began. A VA lumbar spine examination was provided in October 2019. However, while the examiner found pain on range of motion testing, he did not note the point pain began as requested in the remand directives. This does not allow the Board to properly assess the functional impairment caused by the disability. Examinations for joint disabilities generally must include range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should also note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. Remand is therefore required to provide an accurate picture of functional loss associated with the Veteran’s lumbar spine disability. 2. Entitlement to service connection for a bilateral foot disability, to include pes planus, plantar fasciitis and hallux valgus is remanded. The November 2018 Board remand requested a new VA examination regarding whether the Veteran’s pes planus was aggravated by service. An October 2019 VA examination diagnosed pes planus, hallux valgus and bilateral plantar fasciitis with calcaneal spurs. The examiner noted the Veteran’s reports that her foot disability began in 2000. The examiner found that the Veteran’s foot disability was not aggravated by service, stating as a rationale that there were “no findings in the medical records” to show a pre-existing foot disability, and that the “[f]irst available foot record is dated 2016, almost 2 decades post separation.” The Board notes however, that the evidence review section of the examination report specifically listed multiple medical records of foot complaints prior to 2016, including September 2011 records noting right foot pain and a decade of treatment with orthopedics, March 2012 primary care records noting flat foot and plantar fasciitis, and a diagnosis of hallux valgus at the Veteran’s September 1992 entrance examination. In addition to the records listed in the examination report, the Board notes that VA treatment records show a February 2014 diagnosis of pes planus with foot pain. The opinion’s finding that there were no foot records prior to 2016 is therefore both inaccurate and inconsistent with the examination report’s own recounting of the evidence. A medical examination, as this one, that is based on an inaccurate factual premise is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A new examination and opinion—based on full review of the record and supported by stated rationale—is needed to fairly resolve the issue on appeal. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). 3. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. The issue of entitlement to TDIU must also be remanded as it is inextricably intertwined with the issues of an increased rating for the lumbar spine and service connection for a bilateral foot disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his lumbar spine disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all lumbar spine pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required 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 any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current bilateral foot disability, to include pes planus, hallux valgus and plantar fasciitis. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current bilateral foot disability found to be diagnosed, the examiner should provide the following opinions: a) Whether the disability clearly and unmistakably pre-existed service. The opinion should address the September 1992 entrance examination noting mild hallux valgus and abnormal feet. If the disability is found to have preexisted service, the examiner should indicate whether it was aggravated beyond its natural progression by service, to include allegations of aggravation from running and boot wear. b) If the examiner finds that any bilateral foot disability found did not pre-exist service, the examiner should address whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include allegations of damage from running and boot wear. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of her symptoms. 3. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold, 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.