Citation Nr: 21003446 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-37 906 DATE: January 21, 2021 ORDER Entitlement to an initial rating higher than 70 percent for posttraumatic stress disorder (PTSD) with anxiety and depression, prior to February 6, 2013, is denied. REMANDED Entitlement to service connection for prostate disability (including benign prostatic hyperplasia with polyuria), to include as secondary to service-connected diabetes mellitus, is remanded. FINDING OF FACT From the September 10, 2010 effective date of service connection through February 5, 2013, the Veteran’s PTSD with anxiety and depression was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood; symptoms and impairment did not more nearly approximate both total social and occupational impairment. CONCLUSION OF LAW The criteria for an initial rating higher than 70 percent for PTSD with anxiety and depression, prior to February 6, 2013, are not met. 38 U.S.C. § §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to October 1967, which includes service in the Republic of Vietnam. These matters initially came before the Board of Veterans’ Appeals (Board) from January and August 2012 rating decisions. The Veteran testified before a Decision Review Officer (DRO) at a January 2013 hearing and a transcript of the hearing is associated with his claims file. In an August 2014 decision, a DRO awarded a higher initial (50 percent) rating for anxiety and depression and a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, both from September 10, 2010. In May 2018, the Board awarded service connection for PTSD and remanded the issues of entitlement to service connection for prostate disability and entitlement to a higher initial rating for service-connected psychiatric disability for further development and to allow the agency of original jurisdiction (AOJ) to implement the award of service connection for PTSD and to readjudicate the issue of entitlement to a higher initial rating for service-connected psychiatric disability. In March 2019, the Appeals Management Office implemented the Board’s award of service connection for PTSD, rated this disability in conjunction with the already service-connected anxiety and depression, and assigned a 70 percent disability rating, from September 10, 2010 through February 5, 2013, and a 100 percent disability rating, from February 6, 2013, for the service-connected psychiatric disability (recharacterized as PTSD with anxiety and depression). As the Veteran was awarded a total (100 percent) rating from February 6, 2013 for his service-connected PTSD with anxiety and depression, the rating for this disability during this period will not be addressed by the Board. Cf. AB v. Brown, 6 Vet. App. 35, 38 (1993). Moreover, the Board points out that the Veteran had also perfected an appeal with regard to the issue of entitlement to service connection for cardiac disability other than single-vessel coronary artery disease, and the Board remanded this issue in May 2018 for further development. The Appeals Resource Center awarded service connection for valvular heart disease, status post-surgery for heart valve replacement, chronic atrial fibrillation, coronary artery bypass graft, and old inferior infarct by way of an October 2020 rating decision, and thereby resolved the appeal as to this issue. As a final preliminary matter, in the May 2018 remand, the Board directed the AOJ to implement the Board’s award of service connection for PTSD and assign a disability rating, ask the Veteran to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records, obtain all outstanding VA treatment records, and obtain the Veteran’s Social Security Administration (SSA) disability records. Pursuant to the Board’s remand, the Veteran was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records by way of a June 2019 letter. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the letter. Also, the Veteran’s SSA disability records and outstanding VA treatment records were obtained and associated with the claims file. Therefore, the AOJ substantially complied with the Board’s remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Higher Initial Rating Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be “staged.” Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Entitlement to an initial rating higher than 70 percent for PTSD with anxiety and depression, prior to February 6, 2013 When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 38 C.F.R. §§ 4.125, 4.130. The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, DC 9411. This disability is rated according to the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, 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 when symptoms such 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 cause total occupational and social impairment. Under the General Rating 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 list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the 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. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds that, for the following reasons, the symptoms of the Veteran’s PTSD with anxiety and depression resulted in deficiencies in most of the areas needed for a 70 percent rating, but no higher, under the General Rating Formula during the entire period from the September 10, 2010 effective date of service connection through February 5, 2013. A November 2010 psychiatric examination report from W. Crum, Ph.D. and the report of a January 2011 VA psychiatric examination indicate that the Veteran experienced anger and low frustration tolerance which interfered with his ability to be intimate, caused conflict with others, and contributed to the failure of his first marriage. He was living with his girlfriend of 8 years, he was satisfied with their relationship and described it as positive and stable, his girlfriend was his only source of help and support, and he got along well with his girlfriend’s family. He had four adult children from his first marriage and had good relationships with his brother and sister. He had a history of various jobs following service and experienced some problems appropriately interacting with co-workers in that he was a “scrappy person,” but he did not appear to have any difficulty handling the stresses and demands of his previous jobs and was usually able to be on time and perform his expected job duties. He retired in 2004 because his physical abilities were limited by atrial fibrillation, Raynaud’s syndrome, and peripheral neuropathy and he had not maintained any gainful employment since that time “mostly because of his medical problems.” As for symptoms of his psychiatric disability, the Veteran experienced anxiety; depression; recurrent and intrusive distressing recollections of traumatic experiences in service; recurrent nightmares; dissociative experiences when exposed to certain triggers; avoidance of thoughts, feelings, or conversations associated with service; and impaired sleep. Also, he experienced irritability; outbursts of anger; impaired concentration; hypervigilance; a hyperstartle response; motor tension, retardation, and sluggishness; low energy; restlessness; loss of interest or pleasure in activities; decreased appetite; feelings of worthlessness; and social avoidance. He did not like crowds or dealing with people and his recreational activities were limited because of health issues. Examinations revealed that the Veteran was fully alert and oriented, cooperative, and appropriately dressed with good grooming and hygiene. His expressions and mannerisms were appropriate, he interacted well and made good eye contact, his anxiety level was appropriate, his psychomotor activity was within normal limits, his motor behavior was primarily calm, and he did not exhibit any involuntary movements, psychomotor agitation, or psychomotor retardation. His mood was occasionally dysthymic, his affect appeared reactive and mood congruent, his speech was clear, coherent, productive, relevant, and at an appropriate rate and volume, his thought processes were intact, spontaneous, logical, and coherent, there was no evidence of any disturbance in form or content of thought, there were no hallucinations or delusions, and there was no evidence of overt psychosis. There appeared to be significant impairment in delayed recall and concentration, but his memory was otherwise intact. The Veteran appeared able to manage his own self-care in all major areas of daily living (including grooming, bathing, and toileting), he appeared able to form social judgements, use common sense, understand rules of conventional behavior, and make reasonable decisions, he denied any suicidal/homicidal ideation and past attempts, his insight and judgement were considered satisfactory, and he did not demonstrate any difficulty understanding the verbal instructions regarding personality testing. He did not report any panic attacks, he did not exhibit any obsessive/compulsive behavior, and he was better able to manage his frustration and anger despite past struggles with impulse control problems. Diagnoses of chronic PTSD, depressive disorder, mood disorder, and generalized anxiety disorder were provided. The Veteran’s level of impairment of functioning was severe and he reported that his symptoms interfered with his work, household chores and duties, relationships with friends, fun and leisure activities, relationships with his family, sex life, general satisfaction with life in the past month, and overall level of functioning in all areas of his life. Emotional issues led to the demise of his first marriage and caused conflict with his current girlfriend, he had a limited support system, and he was unable to maintain employment due to cardiovascular issues. The Veteran reported during a June 2012 VA psychiatric examination, the January 2013 DRO hearing, and a February 2013 psychiatric examination with S.B. Wing, Ph.D. that he continued to live with his girlfriend of 11 years, that their relationship was good, and that he had good relationships with his children. He had a tendency to withdraw from others. He worked in various jobs following service, he did not experience any suspensions, reprimands, or terminations from any of his jobs, and did not experience any problems getting along with coworkers. He stopped working in 2004 due to various disabilities. His daily functioning (including his ability to work) was negatively impacted by chronic back and hand pain. With respect to his psychiatric symptoms, the Veteran experienced depression, anxiety, nervousness, feelings of unhappiness, feelings of hopelessness, chronic sleep impairment, fatigue, hypervigilance, nightmares, a hyperstartle response, mild memory loss (such as forgetting names, directions, or recent events), social isolation (e.g., he did not like to be around crowds and did not have any friends), irritability and outbursts of anger, avoidance of activities that reminded him of unpleasant experiences, distrust of others, loss of interest in activities, re-experiencing of traumatic experiences, lack of motivation, and disturbances of motivation and mood. The Veteran did not experience any suicidal ideation, psychotic distortions, ideas of reference, hallucinations, faulty perceptions, or misinterpretations of consensual reality. Examinations revealed that the Veteran was appropriately groomed and casually dressed, that he was fully alert, responsive, and well oriented, that his eye contact was appropriate, and this speech had a gravely quality with a regional dialect. His thoughts were coherent and without disturbances of logic or bizarreness, his speech was without evidence of unusual ideation, and he was responsive to questions. He reported that his mood was a “little irritated” and he had a flat affect. He had some difficulty with concentration and immediate memory, but his remote and recent memories appeared to be generally intact. The Veteran had some insight into his behavior, he comprehended behaviors which would be contrary to social values or that would be personally counterproductive, and he was able to manage his own self-care in most major areas of daily living. The Veteran was diagnosed as having mood disorder, PTSD, major depressive disorder, and generalized anxiety disorder. The examiner who conducted the June 2012 psychiatric examination concluded that the symptoms of the Veteran’s psychiatric disability met the criteria for a 10 percent rating under the General Rating Formula (i.e., occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication). Also, Dr. Wing explained that the Veteran was unemployable “due to his numerous disabling conditions.” The Board acknowledges that the Veteran was not employed during the claim period prior to February 6, 2013 and that he experienced psychiatric symptoms that would cause some occupational impairment. Regardless, there was not total social impairment. Although he reported social isolation and problems being in crowds due to his psychiatric disability, he nonetheless maintained good relationships with his siblings, his children, his girlfriend, and his girlfriend’s family. Furthermore, the Veteran experienced impaired memory and concentration, nightmares, and intrusive thoughts. Nevertheless, he did not generally demonstrate gross impairment in thought processes or communication, he did not experience any hallucinations or delusions, he was cooperative with treatment providers and did not exhibit any grossly inappropriate behavior, he did not experience any suicidal or homicidal ideation and there is no other evidence that he exhibited any persistent danger to himself or others, he did not experience memory loss for names of close relatives, own occupation, or name, he remained fully oriented to time and place, and there is no evidence that he was unable to perform activities of daily living. Overall, the Board finds that, during the claim period prior to February 6, 2013, the Veteran did not exhibit most of the symptoms indicative of a 100 percent rating under the General Rating Formula, and the overall level of impairment did not more nearly approximate total social impairment during this period. In sum, the Board finds that, overall, the Veteran did not exhibit most of the symptoms listed in the criteria for the maximum, 100 percent rating under the General Rating Formula as examples of the type and extent, frequency or severity, as appropriate, to indicate both total social and occupational impairment at any point during the claim period from the September 10, 2010 effective date of service connection through February 5, 2013. Moreover, his level of impairment did not more nearly approximate total social impairment. Rather, the Veteran’s psychiatric symptoms and overall level of impairment most closely approximated the criteria for a 70 percent rating under the General Rating Formula during the entire claim period prior to February 6, 2013. Hence, an initial rating higher than 70 percent for PTSD with anxiety and depression is not warranted at any time prior to February 6, 2013. As a final point, the Board notes that in conjunction with the appeal for a higher initial rating for PTSD with anxiety and depression prior to February 6, 2013, the Veteran has not raised any other related issues, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to service connection for prostate disability (including benign prostatic hyperplasia with polyuria), to include as secondary to service-connected diabetes mellitus, is remanded. The Veteran primarily contends that he has current prostate disability that is associated with his service-connected diabetes mellitus. He was most recently afforded VA examinations for his claimed prostate disability in August 2020 and was diagnosed as having benign prostatic hypertrophy and polyuria secondary to benign prostatic hypertrophy. The physician who conducted the examinations opined, in pertinent part, that the Veteran’s prostate disability was not likely proximately due to, the result of, or aggravated by his diabetes mellitus. These opinions are inadequate because the examiner did not provide any specific explanations or rationales for the opinions other than to note that there was no known link or aggravation link between benign prostatic hypertrophy and polyuria and diabetes mellitus. Therefore, a remand is necessary to obtain an appropriate medical opinion. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Clarksburg Vista electronic records system (dated to September 2020) and the VA Pittsburgh Healthcare System (dated to September 2015). Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for prostate disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for prostate disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records from the Clarksburg Vista electronic records system for the period since September 2020; the VA Pittsburgh Healthcare System for the period since September 2015; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any prostate disability experienced by the Veteran since approximately September 2010 at least as likely as not (1) is caused by his service-connected diabetes mellitus; OR (2) is aggravated by his service-connected diabetes mellitus. (CONTINUED ON NEXT PAGE) The clinician must provide reasons for each opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.