Citation Nr: 21063682 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 19-00 662 DATE: October 15, 2021 ORDER Entitlement to an initial 70 percent rating for service-connected posttraumatic stress disorder (PTSD) and obsessive-compulsive disorder (OCD) is granted. Entitlement to TDIU is granted. REMANDED Entitlement to service connection for a cervical spine disability with radiculopathy in upper extremities is remanded. Entitlement to service connection for a right knee condition, claimed as secondary to the service-connected left knee disability, is remanded. FINDINGS OF FACT 1. The Veteran's service-connected PTSD and OCD has been manifested by symptoms of depression, anxiety, panic attacks, anger, frustration, racing thoughts, difficulty focusing, diminished concentration, abnormal speech, chronic sleep impairment, mild memory loss, disturbance of mood and motivation, difficulty adapting to stressful circumstances and difficulty with task completion with obsessive thoughts which interfere with routine activities; the Veteran more nearly approximates the criteria for occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking and mood. 2. The effects of the Veteran's service-connected disabilities have rendered him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating for service-connected PTSD and OCD have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1986 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2017 and November 2017 rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO). The Board notes that additional evidence was received after the most recent statement of the case. However, at the May 2021 Board hearing, the Veteran's representative waived initial review by the Agency of Original Jurisdiction (AOJ). Increased Rating for PTSD Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran seeks a rating higher than 50 percent for his service-connected PTSD and OCD, currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the general rating formula, a 50 percent rating is assigned for 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation 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 situations (including work or a work-like setting); and inability to establish and maintain effective relationships. Finally, a total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Further, "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment associated with the rating code to determine whether an increased evaluation is warranted. Turning to the facts of the case, the Veteran filed a claim for service connection for an acquired psychiatric disorder in June 2016. Contemporaneous treatment records reflect the Veteran endorsed some depression and anxiety. He also described experiencing racing thoughts and difficulty with focus and concentration. His mental status was within normal limits. He denied homicidal and suicidal ideation and there was no evidence of any psychosis, delusions, or hallucinations. His speech was rapid and somewhat over-productive, but his treating psychiatrist found that such was his baseline. He remained fully oriented and he was grossly cognitively intact. See VA Treatment Records dated March 31, 2016, May 26, 2016, August 26, 2016, and July 26, 2017. At the September 2017 VA examination, the Veteran reported living with his wife and two children. He had a post-service history working as a car stereo installer, boat work and cabinet maker. The examiner identified acquired psychiatric symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty adapting to stressful circumstances. Ultimately, the examiner found that the Veteran's PTSD and OCD caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks during periods of significant stress, or symptoms controlled by medication. Subsequent VA treatment records noted that the Veteran continued to live with family members and that they got along well. He was searching for employment. He described chronic racing thoughts, had some difficulty and has some anxiety that was managed well with medication. Mental status examinations were significant for mildly pressured speech, tone and volume with mildly anxious mood. At a hearing in April 2018, the Veteran described being able to hyper-focus on small items and being a perfectionist but also having an inability to focus on completing tasks which caused problems at work. He experienced anxiety and depression on a daily basis. He had frequent panic attacks when things went wrong. He had mind racing episodes when thinking about solving a problem at which times he would forget to feed himself or take care of his children. He had difficulties with short-term memory and he had to write things down. His spouse described the Veteran as being easily aggravated resulting in anger and frustration. However, there was no physical violence. He had an episode of being in an argument and screaming in the middle of the street, and had episodes of road rage. At the May 2018 VA examination, the Veteran continued to experience depressed mood, anxiety, chronic sleep impairment, and mild memory loss. He stated that he had a hard time sitting still and experienced racing thoughts. He described maintaining a good relationship with his wife of 14 years. However, he described his relationship with his children as "good, strained at times." Socially, the Veteran stated that he was working on building a circle of friends. He pursued hobbies such as paintballing, woodworking, creating, and mountain biking. The Veteran's mental status was within normal limits. He denied suicidal or homicidal ideation and he was oriented on all spheres. The examiner found that the Veteran's PTSD and OCD caused impairment due to mild or transient symptoms, which decreased his work efficiency and ability to perform tasks during periods of significant stress. In subsequent treatment records, the Veteran continued to endorse anxiety and long with racing thoughts and sleep disturbance, secondary to his various life stressors. Most often, he described improvement in his depressive mood, focus, and concentration and denied flashbacks, intrusive thoughts, and nightmares. There was no evidence of suicidal or homicidal ideation, and he did not endorse any psychosis, hallucinations, or delusions. In October 2018, the Veteran reported an increase in his anxiety and intrusive thoughts due to the 30th anniversary of his in-service motorcycle accident. However, after the anniversary, the severity of his symptoms declined. He continued to pursue his hobbies of paintballing and woodworking. See VA Treatment Records dated April 2018 to September 2020. At a hearing in May 2021, the Veteran testified to mind wandering when performing repetitive tasks which caused problems at work. For example, he would cut too many pieces of wood or run his fingers through the table saw. He had generally lost his ability to maintain focus particularly when his mind became focused on a small detail or problem to solve. This process was overwhelming to the point getting out of control and he was unable to function. At times, he became confused. He did not believe he had the ability to work an 8-hour day due to his inability to maintain focus. He self-described himself as overly reactive and being on the edge. His spouse described the Veteran as having only one friend, and he could not maintain close relations with family members. Most recently, at the May 2021 VA examination, the Veteran continued to endorse anxiety, chronic sleep impairment, and mild memory loss, along with difficulty understanding complex commands, disturbances in motivation and mood and difficulty establishing/maintaining relationships and adapting to stressful circumstances. He reported being stressed out about life circumstances, to include finances, which aggravated his anxiety. Upon mental status examination, the Veteran presented as hyper-talkative with normal prosody. However, there was no suicidal or homicidal ideation and he was fully oriented with no hallucinations. The examiner found that the Veteran's PTSD and OCD caused impairment due to mild or transient symptoms, which decreased his work efficiency and ability to perform tasks during periods of significant stress. Most recent treatment records document the Veteran's continued reports of anxiety and some episodes of depression. The Veteran stated that due to various life stressors and health complications, he noticed diminished concentration and increased frustration. The severity of his sleep disturbances varied depending on the level of stress he experienced. He remained fully oriented and there was no evidence of psychosis, violent ideations, hallucinations or delusions. He continued to pursue his hobbies of paintballing and woodworking. Upon review of the record, the Board finds that the severity of the Veteran's PTSD and OCD has been primarily been manifested by symptoms of depression, anxiety, panic attacks, anger, frustration, racing thoughts, difficulty focusing, diminished concentration, abnormal speech, chronic sleep impairment, mild memory loss, disturbance of mood and motivation, difficulty adapting to stressful circumstances and difficulty with task completion with obsessive thoughts which interfere with routine activities. The Board notes that the Veteran has consistently reported that his obsessive traits cause periods of hyper-focus to the point of becoming overwhelming and significantly interfering with all activities of daily living. This is an example supporting a 70 percent rating. This aspect of disability is frequent in recurrence and exceptionally disruptive in his ability to perform activities of daily living. Overall, the Board finds that the Veteran more nearly approximates the criteria for occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking and mood. As such, a 70 percent rating is warranted for the entire appeal period. However, the Board finds that the frequency and severity of his psychiatric symptoms over the appeal period do not meet, or more nearly approximate, the criteria for a 100 percent schedular rating. In this respect, the Veteran has limited social relations but maintained good relationships with his wife and children. He also pursued hobbies such as paintballing and woodworking. He does not have "total" social impairment. Additionally, the Veteran has demonstrated some capacity to work and does not have "total" industrial impairment. His mental status remained within normal limits, he consistently denied suicidal or homicidal ideations, and there was no evidence of delusions or hallucinations. He remained oriented on all spheres and exhibited good insight and judgment. Additionally, the VA examiners, when considering the frequency, severity and duration discussed above, found that the Veteran's overall acquired psychiatric disorder resulted in occupational and social impairment due to mild or transient symptoms which decreased is efficiency and ability to perform tasks only during periods of significant stress. Thus, competent medical opinions concerning the occupational and social effects due to the frequency, severity and duration of acquired psychiatric symptoms is less than total. Having reviewed the record, and resolving reasonable doubt in favor of the Veteran, the Board finds that the frequency, severity, and duration of the Veteran's symptoms more nearly approximates a 70 percent rating. Accordingly, the claim for an increased rating is granted. TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities. If there is only one such disability, this disability shall be ratable as 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability 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. For TDIU purposes, marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.1. Factors to be considered, however, will include the Veteran's employment history, educational attainment, and vocational experience. 38 C.F.R. § 4.16. Here, the Veteran's compensable service-connected disabilities include PTSD and OCD, rated 70 percent disabling; residuals fracture left femur with ligament deficiency, rated 30 percent disabling; discoloration along left maxillary process and left temple, rated 10 percent disabling; and left ulnar nerve neuropraxia, rated 10 percent disabling. The Veteran meets the criteria for a schedular TDIU rating under 38 C.F.R. § 4.16(a). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (Court) discussed the meaning of "substantially gainful employment." In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. However, to receive TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The record reflects that the Veteran has an associate's degree in General Education. His work history includes employment as a laborer; he's worked as a cutter, a shop manager, a car radio installer and a boat rigger for various employers. In his application for Increased Compensation Based on Unemployability, the Veteran indicated that his acquired psychiatric disorder and his left knee disability significantly impacted his ability to work as a laborer. Of record is a vocational assessment conducted in June 2021. At that time, the Veteran reported that his past vocational duties included cutting medal, taking orders, using hand tools, cleaning work stations, using heating forges, managing employees, and maintaining boats. He described having difficulty walking and standing for more than five minutes without his knee giving out. He also indicated that he had difficulty problem solving, concentrating, and focusing. He was often unable to finish tasks, which caused problems with his coworkers. As noted in Moore, the Board must address the TDIU question as a practical manner. The Veteran's PTSD and OCD symptoms, which are well documented, would cause difficulty in any work environment, as he was often unable to focus and complete tasks. In addition, his left knee disability would significantly impact his productivity in any field of employment requiring sitting or standing for long periods. When sitting, the left knee had to be elevated to avoid discomfort and pain. The Board recognizes that in recent treatment records, the Veteran reported working with a cabinet maker. However, this type of employment does not constitute gainful employment as the Veteran's work was sporadic and he was not paid in money. See May 2018 VA Psychiatric Examination. Given these facts, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran does not practically possess the ability to obtain or maintain substantially gainful employment consistent with his vocational background. The claim for TDIU, therefore, is granted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS FOR REMAND Right Knee The Veteran is seeking service connection for a right knee disability, which he contends is secondary to his service-connected left knee disability. During the appeal period, the Veteran has been afforded two VA examinations; both examiners found that the Veteran did not have a current right knee disability. However, the Veteran's medical treatment records demonstrate the Veteran's consistent reports of right knee pain; he also uses a knee brace for his right knee symptoms. Court precedent establishes that functional impairment due to pain may establish the current disability prong of service connection irrespective of whether it is diagnostically linked to a current disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1363-68 (Fed. Cir. 2018). Given the above, the Board finds that remand is required to obtain another examination and addendum opinion to determine if the Veteran manifests a right knee disability as defined by Saunders. Under Saunders, a "disability" in [38 U.S.C.] § 1110 refers to the "functional impairment of earning capacity" and "pain in the absence of a presently-diagnosed condition can cause functional impairment." On this basis, the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." Id. at 1368-69. However, the Federal Circuit also made clear that a veteran cannot "demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran's pain must amount to a functional impairment. Therefore, to establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. In determining whether a particular pain reaches the level of "functional impairment of earning capacity," both medical and lay evidence must be considered. 38 C.F.R. § 3.303(a); see also 38 C.F.R. § 4.10 ("Functional impairment") ("The basis of disability evaluations is the ability of the body... to function under the ordinary conditions of daily life including employment."). To be clear, Saunders does not state that medical or "objective" evidence is required to show a functional impairment. Rather, consistent with Federal Circuit precedent, in assessing functional impairment, a veteran's lay assertions may be weighed against contrary medical evidence, but not categorically dismissed. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The VA examinations of record related to the Veteran's right knee do not address whether the pain associated with the Veteran's knee has a functional impact on the Veteran's earning capacity, as mandated by Saunders. In light of this evidence and the Federal Circuit's decision, remand is required for a new examination to properly adjudicate the claim. Cervical Spine The Board also finds that remand is required to obtain an adequate opinion regarding the Veteran's cervical spine claim. The Veteran's service connection claim is based primarily on the documented in-service motorcycle accident. He reports experiencing pain and stiffness of the neck since the 1988 accident. Notably, the May 2018 VA examiner provided a negative nexus, reasoning that the Veteran did not sustain any neck injuries secondary to his in-service accident. However, this finding directly contradicts the evidence of record. The Veteran's service treatment records (seemingly mixed in with his military personnel records) document that the Veteran sustained ligamentous neck injury secondary to the motorcycle accident. Shortly after the accident, he was prescribed a Philadelphia collar and endorsed decreased range of motion and cervical spasms. He was ultimately medically discharged due to, in part, his cervical spine ligamentous injury. See February 1988 Physical Evaluation Board Report. Accordingly, remand is required to obtain an opinion based on the Veteran's documented injury. The matters are REMANDED for the following action: 1. Associate with the claims folder updated treatment records. 2. Schedule the Veteran for an examination to determine the nature and etiology of his right knee disability. Upon examination, the examiner should list any and all diagnoses related to the Veteran's right knee. For each diagnosis provided for the right knee, the examiner should determine whether it is at least as likely as not the disability is related to the Veteran's period of service, or alternatively, caused or aggravated by the Veteran's left knee disability. In rendering the opinion, the examiner should consider the following: November 7, 1986: V reports right knee pain for two days after twisting it; assessed with medial knee strain. May 19, 2010: V is fitted for a knee brace for his right knee. September 12, 2016: V reports bilateral knee pain; he uses a knee brace for both knees. October 4, 2017: X-ray of right knee reveals no abnormality of the joint. If, after appropriate examination and diagnostic testing, the examiner does not find a diagnosis related to the Veteran's right knee, the examiner should describe in detail the presence or absence and the extent of any functional loss due to pain on use and should state whether any pain claimed by the Veteran is supported by adequate pathology or is evidenced by his visible behavior, e.g., facial expression or wincing on pressure or manipulation. If the examiner finds any functional loss due to pain on use in the right knee, the examiner must opine whether the Veteran's currently shown right knee pain is at least as likely as not related to an in-service injury, event, or disease, including the symptoms reflected in his service treatment records, or alternative, caused or aggravated by the Veteran's left knee disability. 3. Schedule the Veteran for a VA examination for his cervical spine disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the current cervical spine disability at least as likely as not related to service, including the documented motorcycle accident, which resulted in cervical ligamentous injury? The examiner is advised that pertinent records are located in "Military Personnel Record" received on June 29, 2016 documenting that the Veteran sustained ligamentous neck injury secondary to the motorcycle accident, that he was prescribed a Philadelphia collar and endorsed decreased range of motion and cervical spasms, and was ultimately medically discharged due to, in part, his cervical spine ligamentous injury. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.