Citation Nr: 21003743 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-14 067A DATE: January 22, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right hip degenerative joint disease is denied. Entitlement to a disability rating in excess of 20 percent for right shoulder degenerative joint disease is denied. Entitlement to a disability rating in excess of 70 percent for PTSD is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s right hip degenerative joint disease has not been manifested by flexion limited to 30 degrees. 2. The Veteran’s right shoulder degenerative joint disease has not been manifested by limitation of motion midway between the side and shoulder level. 3. The Veteran’s PTSD has been manifested by occupational and social impairment with deficiencies in most areas. It has not been manifested by total occupational and social impairment. 4. The Veteran is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for right hip degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5252. 2. The criteria for entitlement to a disability rating in excess of 20 percent for right shoulder degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5299-5201. 3. The criteria for entitlement to a disability rating in excess of 70 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. 4. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102 3.340, 3.341, 4.15, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1998 to October 2011. He appeals a May 2014 rating decision denying entitlement to increased ratings for a hip disability, a shoulder disability, and PTSD, and entitlement to TDIU. In a November 2016 rating decision, the Veteran was awarded an increased rating of 20 percent for his right shoulder disability effective February 19, 2014, the date he filed his increased rating claim. As this award does not represent a full grant of benefits on appeal, the issue of entitlement to an increased rating for a shoulder disability is still on appeal. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, “[w]here 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 required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. 1. Entitlement to a disability rating in excess of 10 percent for right hip degenerative joint disease. The Veteran is currently in receipt of a 10 percent rating for right hip limitation of flexion. He contends that his hip disability warrants a higher rating. After review of the evidence, the Board finds that a rating higher than 10 percent is not warranted. The Veterans hip disability is rated under 38 C.F.R. §§ 4.71a, Diagnostic Code 5252. Diagnostic Code 5252 provides ratings for limitation of flexion with the following ratings assigned: • 10 percent for flexion limited to 45 degrees, • 20 percent for flexion limited to 30 degrees, • 30 percent for flexion limited to 20 degrees, and • 40 percent for flexion limited to 10 degrees. The Board is cognizant that the assignment of multiple ratings based on the same symptoms or manifestations constitutes prohibited pyramiding. 38 C.F.R. § 4.14. The Board notes however, that separate ratings under different diagnostic codes may be assigned where “none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other... conditions.” Esteban v. Brown, 6 Vet. App. 259 (1994). Here, there is no evidence of record regarding limitation of extension or abduction. As such, a separate rating under Diagnostic Code 5251 or 5253 is not warranted. Furthermore, separate ratings are not warranted under Diagnostic Codes 5250 5254, or 5255, as there is no evidence of ankylosis, a hip flail joint, or impairment of the femur. It follows that a higher rating for the Veteran’s right hip disability is only warranted if limitation of flexion of 30 degrees or more is found. The Veteran was afforded a VA examination in April 2014 to assess the severity of his hip disability. The Veteran reported that his hip condition caused mild impact on his ability to work in a physical job where he had to walk, jump, or stoop, and also on his ability to work in a sedentary job where he had to sit at a desk. The Veteran denied experiencing flare-ups but did report painful motion at 120 degrees of flexion. The examiner found no further limitation of flexion after repetitive-use testing. The Veteran subsequently submitted a private medical examination from September 2020. On this occasion the Veteran reported flare-ups and worsening pain with activity. However, the examiner simply reported that all initial range of measurements were normal and that the Veteran reported no additional functional loss or functional impairment, including from repeated use over time. Based on the examination reports, the Board finds that a rating higher than 10 percent is not warranted. In this regard, the Board notes that limitation of flexion is not shown to be compensable under Diagnostic Code 5252. Nonetheless, pain was found on movement into flexion. When pain is noted on movement on any particular motion, a minimum 10 percent rating ia warranted. See 38 C.F.R. § 4.71a, DC 5003 (affording a single minimum 10 percent rating when limitation of motion is noncompensable in a joint, but pain on motion is observed). The Board has considered the Veteran’s assertions that his ability to perform certain activities, such as walking, jumping, stooping, or sitting, is inhibited to a certain extent, the evidence does not show loss of range of motion to the extent that a disability rating higher than 10 percent is warranted. In summation, the evidence does not show that the Veteran’s right hip condition meets the criteria for a higher rating than the 10 percent he has already been assigned. Accordingly, the claim is denied. 2. Entitlement to a disability rating in excess of 20 percent for right shoulder degenerative joint disease. The Veteran is currently in receipt of a 20 percent rating right shoulder limitation of motion at the shoulder level. He contends that a higher rating is warranted. After review of the evidence, the Board finds that a higher rating than 20 percent is not warranted. The Veteran’s right shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board observes that the is right hand dominant. Under Diagnostic Code 5201 for the major side, a 20 is warranted for limitation of motion at shoulder level, a 30 percent rating is warranted for limitation of motion midway between side and shoulder level, and a 40 percent rating is warranted for limitation of motion to 25 degrees from the side. 38 C.F.R. § 4.71a. At his April 2014 VA examination, the Veteran reported pain in the shoulder when he put his arm behind his back of when reaching over his head. The examiner noted painful motion began at flexion of 110 degrees and the Veteran did not report flare-ups. No further limitation of motion was found after repetitive-use testing. No ankylosis or impairment of the humerus or clavicle was noted on the examination report. The Veteran underwent right shoulder surgery May 2017. A June 2017 medical note indicated the Veteran was making excellent progress in his rehabilitation and could abduct to near full range of motion with some stiffness and pain. At his September 2020 hearing, the Veteran estimated that he could lift his arm to 90 degrees without pain and to “probably about 45 degrees” during a flare-up. The Veteran also submitted a September 2020 private medical examination in support of his claim. The Veteran reported near constant pain and an inability to lift objects heavier than 10 lbs. The examiner noted painful motion began at 90 degrees of abduction and no muscle atrophy or ankylosis was noted. The examiner did not provide any further details. Based on the examination reports, the Board finds that a rating higher than 20 percent is not warranted. The Board has considered the Veteran’s statements that he cannot raise his arm to shoulder level without pain. However, the evidence does not suggest that the Veteran’s right shoulder range of motion is limited to midway between his side and shoulder level. The Board has also considered whether a separate rating may be warranted for any instability or deformity of the shoulder joint under 38 C.F.R. § 4.71a, DCs 5202 or 5203. However, there is no evidence of record which shows instability or deformity in his right shoulder. Therefore, a separate rating based on any sort of instability or deformity is not warranted. In summation, the evidence does not show that the Veteran meets the criteria for an increase rating higher than 20 percent based on limited range of motion, nor does it indicate that a separate rating is warranted. As such, the claim is denied. 3. Entitlement to a disability rating in excess of 70 percent for PTSD. The Veteran is currently rated at 70 percent for his PTSD. He contends that a 100 percent rating is warranted. After review of the evidence, the Board finds that a rating higher than 70 percent is not warranted. The Veteran’s PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which applies the General Rating Formula for Mental Disorders. Under these rating criteria, a 70 percent rating is assigned 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. 38 C.F.R. § 4.130, DC 9411. 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; memory loss for names of close relatives, own occupation, or own name. Id. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court of Appeals for Veterans Claims (Court) also pointed out in that case, “[w]ithout those examples, differentiating a 30 percent evaluation from a 50 percent evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. The Veteran was afforded a VA examination in April 2014. At his examination, the Veteran reported feeling good. The examiner noted that the Veteran was properly groomed with cooperative behavior. He exhibited a logical flow of thought with normal speech. He denied any delusions or other psychotic symptoms and very strongly denied any thoughts of harm to himself or others. The examiner rated his insight and judgment as good and determined that he was capable of managing his financial affairs. The examiner endorsed symptoms such as depressed mood, anxiety, suspiciousness, and chronic sleep impairment. Based on the examination, the examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. In May 2014, the Veteran submitted lay statements from his wife and a former employee as evidence. The former employee asserted that the Veteran had a short temper which adversely affected his interactions with both employees and customers. Specifically, he would take his anger out on customers and would eventually start shaking to the point that he would have to leave the work environment. The former employee reported that the Veteran seemed to be on “high alert” and could not calm himself down. The Veteran’s wife reiterated the claims made by the former employee. The wife asserted that the Veteran maintains standards which are impossible to meet and is quick to become angry at almost nothing. The Veteran’s spouse also disputed the findings made by the April 2014 VA examiner in the July 2014 Notice of Disagreement (NOD). The spouse claims that the examination did not last long enough for the examiner to make accurate findings. However, the evidence does not indicate that the Veteran’s spouse has the requisite medical expertise to render such an opinion. Evaluation of the Veteran’s psychiatric condition is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, the spouse’s assertions regarding the adequacy of the April 2014 VA examination are given no probative weight. The Board does recognize that a layperson is competent to report the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (observing that a Veteran is competent to report on that of which he or she has personal knowledge). To this extent, the Board finds the spouse descriptions of the Veteran’s behavior to be competent and credible. Specifically, the spouse asserts that the Veteran’s anger and anxiety undermined his ability to function appropriately at work. She points to an occasion in which the Veteran was arrested on assault charges after he became intoxicated at work. In June 2016, the Veteran underwent a mental health assessment. The Veteran reported feeling good and he was observed to be properly groomed and cooperative. The examiner noted that he exhibited a logical flow of thought and his speech was coherent. He denied any psychotic symptoms, delusions, or thoughts of harm to himself or others. His insight and judgment were rated as good. A January 2017 medical note reaffirmed that the Veteran continued to struggle with high levels of anxiety, hypervigilance, and irritability outside the home but, through treatment, he was able to manage his angry outbursts, anxiety, and depression in his home environment. The Veteran was afforded another VA examination in July 2019. The examiner determined that the Veteran’s PTSD resulted in total occupational and social impairment. However, the Board finds that the examiner’s findings are internally inconsistent and do not support such a conclusion. Specifically, the examiner notes the Veteran’s many avoidant behaviors related to his anger and rage, noting that the Veteran essentially barricades himself and rarely goes out. However, the examiner concurrently points out that the Veteran keeps himself very busy, painting his house, etc., and this has been very helpful to him. The examiner reports that the Veteran no longer drives due to his anger issues, but also notes that this is because the Veteran has successfully identified his triggers and how to cope with his anger the best he can. Hence, although the Veteran does exhibit social impairment due to his PTSD, the evidence shows that he is able to successfully process his problem behaviors and take appropriate steps to avoid them. The examiner notes that the Veteran experiences hallucinations, described as shadows in his peripheral vision, but admits this is not a part of any psychotic disorder. Notably, at his September 2020 hearing, the Veteran reported that he actually has acute peripheral vision and does not experience hallucinations. The examiner determined that the Veteran does not have the ability to carry out activities of daily living, but only insofar as he chooses not to drive. The examiner makes no findings regarding the Veteran’s ability to care for himself in any other way. Furthermore, the examiner observed that the Veteran was oriented to person, place, and time, his cognitive functioning appeared in the normal range, his rate and flow of speech was within normal limits, logical, and easily elicited, and there were no loose associations or flight of ideas noted. In addition, the examiner noted that the Veteran exhibited a persistent danger of hurting himself or others, but then opines that the Veteran is considered to be of low risk for any type of self-harm and he denies any current or previous thoughts of intentional harm toward others. As such, the Board affords minimum probative weight to the examiner’s opinion that the Veteran’s PTSD results in total occupational and social impairment. Moreover, at his September 2020 hearing the Veteran again acknowledged that knows what his triggers are and takes steps to disengage from problem situations. He admits that he has had suicidal ideations with the most recent about a year prior. He asserts that he does not disregard his hygiene and does not experience any disorientation as to time or place. Based on the medical and lay evidence of record, the Board finds that the symptoms of the Veteran’s PTSD are more accurately captured by the criteria for a 70 percent rating. The evidence indicates that the Veteran has occasional suicidal ideations, impaired impulse control as exhibited by his chronic anger, and difficulty adapting to stressful situations. However, the Veteran is lucid in his thoughts when not angry and appears to have identified proper methods to avoid situations which may elicit an angry outburst. He has not exhibited such behaviors as gross impairment in thought processes or communication, an intermittent inability to perform activities of daily living, disorientation as to time or place, or memory loss for such things as his own name or the names of close relatives. Therefore, the Board finds that a higher rating than 70 percent is not warranted for the Veteran’s PTSD and the claim is denied. TDIU The Veteran contends that he cannot work due to his service-connected disabilities. After review of the evidence, the Board finds that entitlement to TDIU is warranted. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran has been in receipt of a 70 percent rating for his PTSD throughout the period on appeal. Thus, the threshold requirement for TDIU on a schedular basis has been met. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2018). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed to Board to consider the following factors: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58 (2019). As an initial matter, the Board notes that the Veteran is service-connected for the following disabilities: PTSD, right shoulder rotator cuff tendonitis, right hip degenerative joint disease, right patellofemoral pain syndrome, left patellofemoral pain syndrome, and hypertension. The record reflects that the Veteran has not worked since approximately March 2014. At his September 2020 hearing, the Veteran reported that he could not work anymore due to the stress and anxiety of dealing with people. He admits that he was present at his self-owned business when under the influence of alcohol. He got into an argument, the police came, and he has not worked since. Statements from the Veteran’s spouse and a former employee indicate that the Veteran cannot interact with others in a work environment due to symptoms of his PTSD. Specifically, his spouse indicated, and the Veteran has admitted as much, that his perception of right and wrong is so unwaveringly rigid that he cannot tolerate others who do not act as he believes they should. For instance, the Veteran has had the police called on him on several occasions. The record shows that he had the police called him at least twice at his own place of business alone. On another occasion, the police were called after the Veteran appeared to threaten a minor at a youth baseball game over an issue as trivial as littering. The Veteran’s spouse further asserts that his negative feelings are so strong that he cannot even speak to others on the phone in the work environment. The spouse stated that the Veteran’s actions toward employee infractions at work were frequently exaggerated and unrestrained to a level of “near harassment”. She contended that his mere presence at work creates a precarious and always potentially volatile situation and work environment. The Board observes that the Veteran no longer drives as he has been unable to control his anger at other drivers. The Board finds the lay statements submitted in support of the claim to be highly probative and persuasive. The Veteran’s spouse co-owned a business with him and viewed his behavior on a daily basis. Her statements regarding the Veteran’s attitude toward others in a work environment corroborate the Veteran’s own testimony regarding his PTSD symptoms. Based on his PTSD symptoms alone, the Board finds that the Veteran is unable to obtain or maintain substantially gainful employment. His view towards the actions of others makes him a constant threat to customers and coworkers. As a result, he is unable to interact with the public either directly or indirectly in a work-like setting. Accordingly, the claim for entitlement to TDIU is granted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate Counsel