Citation Nr: 21003318 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-45 772 DATE: January 21, 2021 ORDER Entitlement to an effective date prior to May 6, 2015 for the award of service connection for post-traumatic stress disorder (PTSD) due to military sexual trauma is dismissed. Entitlement to an effective date prior to May 6, 2015 for the award of service connection for degenerative arthritis of the cervical spine is dismissed. Entitlement to an effective date prior to May 6, 2015 for the award of service connection for radiculopathy of the right upper extremity is dismissed. Entitlement to an effective date prior to May 6, 2015 for the award of service connection for radiculopathy of the left upper extremity is dismissed. A 70 percent rating for PTSD due to military sexual trauma is granted. Service connection for low back disability characterized as lumbar degenerative joint disease, is granted as secondary to service-connected degenerative arthritis. REMANDED A rating in excess of 20 percent for degenerative arthritis of the cervical spine is remanded. A rating in excess of 20 percent for radiculopathy of the right upper extremity is remanded. A rating in excess of 20 percent for radiculopathy of the left upper extremity is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Service connection for neuropathy, left foot is remanded. Service connection for neuropathy, right foot is remanded. FINDINGS OF FACT 1. In August 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized attorney-representative, that a withdrawal of this appeal is requested as to the issues of entitlement to an effective date prior to May 6, 2015 for the award of service connection for PTSD, degenerative arthritis of the cervical spine, radiculopathy of the right upper extremity and radiculopathy of the left upper extremity. 2. The severity, frequency, and duration of the Veteran’s PTSD due to military sexual trauma symptoms more closely approximate occupational and social impairment with deficiencies in most areas; at all times relevant to the decision, the severity, frequency, and duration of the Veteran’s PTSD symptoms do not more closely approximate total occupational and social impairment. 3. The Veteran’s current low back disorder, characterized as lumbar degenerative joint disease, is causally related to his service-connected degenerative arthritis. A subsequent manifestation of an already service connected disease process. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant have been met as to the issues of entitlement to an effective date prior to May 6, 2015 for the award of service connection for PTSD, degenerative arthritis of the cervical spine, radiculopathy of the right upper extremity and radiculopathy of the left upper extremity. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a disability rating of 70 percent, and no more, for PTSD due to military sexual trauma are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 3. Lumbar degenerative joint disease is proximately due to or the result of service-connected degenerative arthritis. 38 C.F.R. §§ 3.102, 3.303, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who service on active duty from November 1980 to November 1982 and from November 1982 to September 1986, appeals October 2014 and September 2015 rating decisions. The appellant testified before the undersigned Veterans Law Judge (VLJ) at a March 2020 Board hearing. At the hearing, the undersigned clarified issues on appeal and made inquiry as to the existence of outstanding evidence relevant to the issues being decided. It was noted that there was some confusion as to some issues ostensibly characterized as part of the appeal, and discussion ensued as to the need to clarify the nature of any effective date claims. The actions of the VLJ comply with 38 C.F.R. § 3.103. The appellant’s attorney’s request for additional time to submit evidence and argument was granted. Additional evidence and argument were received thereafter by the Board. In the written argument, the Veteran’s attorney withdrew the effective date claims. DISMISSALS 1. Entitlement to an effective date prior to May 6, 2015 for the award of service connection for post-traumatic stress disorder (PTSD) is dismissed. 2. Entitlement to an effective date prior to May 6, 2015 for the award of service connection for degenerative arthritis of the cervical spine is dismissed. 3. Entitlement to an effective date prior to May 6, 2015 for the award of service connection for radiculopathy of the right upper extremity is dismissed. 4. Entitlement to an effective date prior to May 6, 2015 for the award of service connection for radiculopathy of the left upper extremity is dismissed The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive legacy appeal may be withdrawn in writing by an appellant or authorized representative at any time before the Board promulgates a decision and is effective upon receipt by the Board. 38 C.F.R. §§ 19.55 (a), (b)(3). The Board received the Veteran's withdrawal of the present appeal as to these four issues in August 2020, before the Board promulgated a decision, at which time it became effective and there remained no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review the appeal as to these four issues, and it is dismissed as to these four issues. 38 C.F.R. § 19.55. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. A 70 percent rating for PTSD due to military sexual trauma is granted. The September 2015 rating decision granted service connection for this disability and assigned a 30 percent rating effective from May 6, 2015. The Veteran seeks an initial 70 percent rating consistent with the theories raised in his attorney’s August 2020 argument as well as at the hearing, generally, it is asserted that he meets the criteria for a 70 percent rating. Upon review of the evidence, with specific emphasis on the opinion of psychiatrist John L. Newcomb, M.D., the Board finds that the Veteran’s disorder warrants a rating of 70 percent for the entire period on appeal. However, it finds that the preponderance of the evidence is against finding that the criteria for a rating in excess of 70 percent are met any time relevant to the claim. The Veteran’s PTSD due to military sexual trauma rating is assigned under Diagnostic Code 9411. 38 C.F.R. § 4.130. The disability is rated using the General Rating Formula for Mental Disorders (General Formula). A 70 percent disability 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 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 worklike setting); inability to establish and maintain effective relationships. We note that the initial August 2015 VA examination for PTSD was largely focused on whether the Veteran had psychiatric disorder, if so which one, and was it related to service. Here, we note that Dr. Newcomb’s uncontroverted January 2017 report, received in August 2020, reflects that doctor’s considered opinion as to functional impairment. In short, he explains that the Veteran’s PTSD causes significant occupational and social impairment and indeed results in deficiencies in most areas. Dr. Newcomb observed there are ongoing obsessional rituals involving security, near continuous panic, significant depression, and virtually all of the criteria required for the 70 percent rating. However, the Veteran did not appear suicidal or homicidal. He noted the Veteran awoke early and had urinary incontinence due to nightmares. He sets off to work as a substance abuse counselor but his mind wanders to his military sexual trauma and he fights to control flashbacks. On weekends he neglects personal appearance in terms of shaving and bathing. He feels depressed often and lacks motivation. He is irritable and angry in terms of social function. He is withdrawn and suspicious of strangers and is frightened of strange men. He is reluctant to confide in others, he feels different, like damaged goods. He has sexual dysfunction. Consistent with this report, the Veteran testified before the undersigned that his symptoms of PTSD due to sexual trauma include all of the aforementioned problems, to include fear of people, especially men. He has difficulty with others at work but has been trying to continue to work in a setting where he is not triggered, and achieve his degree and counsel others. He intends to work as a full-fledged counselor once he finishes his psychology degree, albeit part time. Resolving reasonable doubt in the Veteran’s favor, the severity, frequency, and duration of the Veteran’s PTSD more closely approximate occupational and social impairment with deficiencies in most areas. We find Dr. Newcomb’s opinion to be of great probative weight as it is well-supported and consistent with the record. A 70 percent rating is warranted. The next question for the Board is whether the Veteran’s disability meets or more nearly approximates the criteria for a higher rating. Specifically, 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, warrants the maximum, 100 percent disability rating. 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. 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. The criteria for a rating in excess of 70 percent are not met or approximated at any time. The Veteran essentially urges that he has the aforementioned symptoms. He has not endorsed total occupational and social impairment or relevant signs of the 100 percent rating criteria. Moreover, he is impaired in his occupational capacity but admittedly remains working and attempting to finish his degree to help others, to his credit. He himself has estimated that his rating should be 70 percent. Furthermore, neither any examination nor the treatment record reflects that he meets or approximates the criteria for a 100 percent rating. Neither the VA examinations, nor the contemporaneous treatment records, show 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. Rather, the examinations and treatment records reflect generally that these manifestations are not present. Mental status examinations in VA treatment records show this level of impairment is not present inasmuch as thought processes or communication are not grossly impaired, there are no delusions or hallucinations, he remains oriented, can perform activities of daily living, and does not have the outlined degree of memory loss. See, e.g., March 2016 and March 2017 VA treatment records. No examiner has found that total occupational and social impairment due to such symptoms. Thus, although the record overall reflects severe impairment, it does not remotely suggest find total impairment as required for a 100 percent rating. The criteria for a 100 percent rating under DC 9411 are not met or approximated. The Board has considered all psychiatric symptoms in reaching the above conclusions. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against a rating in excess of 70 percent. The benefit of the doubt doctrine is not applicable, and his claim must be denied as to a rating in excess of 70 percent. 38 C.F.R. §§ 4.3, 4.7. The degree of impairment has remained uniform at 70 percent throughout the appeal period. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110 (wartime), 1131 (peacetime). In general, to establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection is also warranted for a disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). See section 3.303 which provides that subsequent manifestation of the same disease process are service connected unless clearly due to intercurrent cause. 2. Service connection for low back disability is granted. The Veteran theorizes that his current low back disability is due to service-connected degenerative arthritis of the cervical spine. In essence, he argues his cervical spine injuries that resulted from motor vehicle accidents in service slowly caused changes that eventually led to his current low back condition. We note initially that there is current low back disability, characterized in multiple ways but to include as lumbar degenerative joint disease. See June 2015 VA MRI report and August 2015 VA examination of the back. He has presented competent support for this theory by way of a July 2020 medical opinion from Orthopaedic Surgeon Frank A. Graf, M.D. We also note that a negative medical opinion on this claim had been obtained in August 2015 from a VA physician. For the reasons that follow, the Board finds that the evidence as to a causal connection between the degenerative arthritis of the cervical spine and the current low back disorder is in equipoise, and thus grants service connection for the current low back disorder based on the theory that it is proximately due to degenerative arthritis of the cervical spine. It is generally accepted that lumbar degenerative joint disease was diagnosed in 2000, as set forth in the August 2015 VA examination report. Here, the Veteran has presented a well-supported medical opinion from Dr. Graf that the current lumbar degenerative joint disease/intervertebral disc disorder is due the cervical spine condition. Dr. Graf cites to inertial loading injuries occurring in two serious motor vehicle accidents and also notes that the postural and gait pattern changes at least as likely as not caused a progressive condition of the lumbosacral spine that led to the development of progressive deterioration of the intervertebral discs and facet joints. Dr. Graf referenced pertinent historical and medical aspects of the claims folder and did not cite to any relevant inaccurate facts. Dr. Graf discussed the opposing 2015 VA examination. The Board reasonably interprets Dr. Graf’s opinion to mean that the Veteran’s lumbosacral spine condition is proximately due to the service-connected cervical spine condition. The Board acknowledges the 2015 VA opinion but notes that even considering that opinion, the medical opinion evidence is equally balanced for and against the claim. The Board accepts Dr. Graf’s opinion as to the etiology of the low back condition as it reflects medical expertise, and is well-supported. Thus, the Board cannot reasonably conclude that the current low back condition is not proximately due to the cervical spine disorder. Here, the evidence is in equipoise as to whether or not the current low back disorder is proximately due to the cervical spine disorder when considering the unique circumstances of this case. The claim must be granted on this basis. We also note that the AOJ granted service connection for degenerative arthritis located at the cervical spine. The AOJ failed to establish a grant of service connection for traumatic arthritis and certainly failed to code the disease process as 5010. Regulations clearly establish that subsequent manifestations of the same disease process are service connected unless clearly due to intercurrent cause. We accept that the AOJ intended what appears in the rating decision and a chronic disease process was granted service connection. If this were error, it was not corrected. Here a clear intercurrent cause for the arthritis of the lumbar spine is not established. Accordingly, service connection is granted. REASONS FOR REMAND 1. A rating in excess of 20 percent for degenerative arthritis of the cervical spine is remanded. 2. A rating in excess of 20 percent for radiculopathy of the left upper extremity is remanded. 3. A rating in excess of 20 percent for radiculopathy of the right upper extremity is remanded. At the hearing before the undersigned, the Veteran testified that his neck and upper extremity signs and symptoms have increased in severity since the most recent VA examinations for these conditions, conducted in August 2015. Thereafter, he underwent physical examination by non-VA orthopaedic surgeon, Dr. Graf in July 2020, who recorded neck and upper extremity complaints and findings. Based on this, the Board finds that updated VA examination for these disabilities, which will provide all necessary rating criteria, is warranted. We note that Dr. Graf’s report does not address all relevant rating criteria. Moreover, the Veteran in August 2020 filed a claim for TDIU, asserting that he is unemployable in large part due to his cervical spine disorder, cervical radiculopathy, and PTSD. Thus, the TDIU claim is inextricably intertwined with the remanded claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). It must therefore be remanded along with these claims. 5. Service connection for neuropathy, left foot is remanded. 6. Service connection for neuropathy, right foot is remanded. We note Dr. Graf’s July 2020 opinion as it relates to the right and left feet conditions, as well as his observation that the low back pain was without radiculopathy. He opines that certain foot conditions are related to service. Here, we also note that he observed that the Veteran had just recently had hammertoe surgery and could not stand. He added that the Veteran’s feet were heavily bandaged. Under these circumstances, we find that VA examination is warranted to assess the Veteran’s actual current disabilities that are the subject of these two claims under less acute circumstances. Accordingly, we find that VA examination is warranted to ascertain the etiology of any current disorder encompassed in these claims for neuropathy of either the right or left foot, to include whether any such disorder is related to service or to service-connected disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations to determine the current level of severity of his degenerative arthritis of the cervical spine and radiculopathy of the right and left upper extremities. The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination as to the cervical spine must comply with the requirements of 38 C.F.R. § 4.59 involving measurements of passive and active range of motion in both weight bearing (as appropriate) and non-weight bearing. (The examiner is at liberty to explain why weight bearing and non-weight bearing is not appropriate for the cervical spine.) A complete rationale for any opinions expressed should be provided. The examiner should be asked to note whether there is any weakened movement, excess fatigability, incoordination, or pain on use. If so, the examiner should note whether there are any additional degrees of loss of motion as a result. If flare-ups are noted, the examiner should note whether pain during flare-ups additionally limits functional ability. The examiner should note whether there are any additional degrees of loss of motion due to pain during flare-ups. If the examination is not performed during a flare-up, the examiner must use the Veteran's reports of dysfunction during flare-ups to assess whether additional loss of ranges of motion or other function are medically consistent with the lay reports. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the current disorder characterized as neuropathy, right and left foot. The examiner should address Dr. Graf’s opinion as well as the prior VA examiner’s opinion. The examiner must opine whether any current disorder characterized as neuropathy, right or left foot is at least as likely as not related to (caused or aggravated by) service or service-connected disease or injury. 3. After the above development and any additionally indicated development has been completed, readjudicate the issues on appeal to include the inextricably intertwined TDIU claim. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his attorney-representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.