Citation Nr: 21064665 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-15 844A DATE: October 21, 2021 ORDER A rating in excess of 50 percent for posttraumatic stress disorder (PTSD) from November 12, 2014 to August 25, 2016 is denied. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT For the period from November 12, 2014 to August 25, 2016, the Veteran's PTSD was productive of no more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW For the period from November 12, 2014 to August 25, 2016, the criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1962 to July 1964. The Veteran died in August 2016 and the Appellant is his properly substituted surviving spouse. In a decision issued in August 2019, the Board, in pertinent part, denied entitlement to a rating in excess of 50 percent for PTSD for the period from November 12, 2014 to August 25, 2015. The Appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court issued a Memorandum Decision vacating the Board's August 2019 decision and remanding the matter on appeal for adjudication consistent with the instructions outlined in the Memorandum Decision. Specifically, the Court instructed that the Board should address the material, favorable evidence of suicidal ideations in the April 2015 VA medical opinion. The Court also pointed out that the Board improperly defined the period on appeal, which should be from November 12, 2014 to August 25, 2016. The Board acknowledges the September 2021 Appellate Brief, wherein, the Appellant's representative indicated that the Veteran's erectile dysfunction and stomach issues were related to his psychiatric disability. The Board emphasizes, however, that the regulations regarding substitution provide that substitution is limited to a claim that is "pending." See 38 C.F.R. § 3.1010(g)(1). Moreover, while a substituted claimant may raise a new theory of entitlement to support a pending claim, they may not add an issue or expand a claim. See 38 C.F.R. § 3.1010(f)(2). Accordingly, while the Board is sympathetic to the Appellant situation, the claims as to whether secondary service connection is warranted for erectile dysfunction and stomach cannot be considered as a matter of law. 1. Entitlement to an increased disability rating for PTSD from November 12, 2014 to August 25, 2016. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. For the period from November 12, 2014 to August 25, 2016, the Veteran's PTSD is rated at 50 percent pursuant to the General Rating Formula for mental disorders. Under the General Rating Formula, a rating of 50 percent is warranted for a mental disorder that results in 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. A higher rating of 70 percent is warranted for a mental disorder that results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Importantly, evaluations under §4.130 are symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As noted, the Veteran has been rated at 50 percent for his service-connected PTSD for the period from November 12, 2014 to August 25, 2016. For the reasons discussed more fully below, the Board finds that a higher rating is not warranted for that period. In November 2014, the Veteran reported that he had a lot of anxiety, he did not like large groups, and he isolated himself. VA treatment records from November 2014 to April 2015 document the Veteran's continuous reports of anxiety and nightmares. Mental status examination during this time showed that the Veteran was cooperative and pleasant, with normal speech, anxious mood, no auditory/visual hallucinations, and insight/judgment intact. These records also reflect that the Veteran denied thoughts of killing himself. See December 2014 and March and April 2015 VA Treatment records. In April 2015, the Veteran underwent a VA examination to assess the severity of his PTSD. The Veteran reported that he was married for 10 years, performed yard work, and traveled to Florida for four months last winter to visit friends. The examiner diagnosed the Veteran with PTSD and documented symptoms consisting of hypervigilance, exaggerated startle response, depressed mood, anxiety, mild panic attacks, and hallucinations consisting of flashes of light. The examiner also documented that, while the Veteran did not have current suicidal ideations, there was a period of time when the Veteran felt like he did not want to be around and he had thoughts of how to kill himself (shooting, hanging, or overdose). The Veteran's mental status examination showed normal mood, neat appearance, thought process logical and sequential, and normal judgment and insight. Based on these findings, the examiner indicated that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. VA treatment records from June 10, 2015 document that the Veteran was doing fine with no significant complaints. During this time, the Veteran reported that he had been depressed and he used to have a death wish but did not actually make any suicide attempts. On June 30, 2015 (20 days later), the Veteran denied any intention of harming himself. In September 2015, the Veteran submitted a signed statement noting that, in June of 2015, he started to have suicidal thoughts due to his pain. In November 2015, the Veteran was assessed with depression, anxiety, and PTSD and he denied any suicidal or homicidal ideas. VA treatment records from March to August 2016, continued to show medication treatment for symptoms of depression and the Veteran was noted to have a normal/appropriate mood and affect. During this time, the VA treatment records reflect that the Veteran denied any suicidal/homicidal ideations. Based on the foregoing, the Board finds that, for the period from November 12, 2014 to August 25, 2016, the criteria for a rating in excess of 50 percent for PTSD have not been met. In that regard, for this period, the evidence did not demonstrate symptomatology reflective of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood (i.e., the criteria for a 70 percent rating). The Board notes that, while the record shows that the Veteran reported some symptoms associated with a higher rating, such as suicidal ideations and hallucinations consisting of flashes of light, it must be emphasized that even with consideration of these symptoms, the totality of the Veteran's disability picture did not demonstrate that his service-connected PTSD resulted in symptoms productive of occupational and social impairment with deficiencies in most areas. See Mauerhan, 16 Vet. App. at 442-43. In fact, despite the Veteran's psychiatric symptoms, which included hypervigilance, exaggerated startle response, depressed mood, anxiety, mild panic attacks, hallucinations consisting of flashes of light, isolation/withdrawal, and temporary suicidal ideations, the VA examination and treatment records reflect that the Veteran's mental status examinations were largely unremarkable with normal judgment, memory, and speech. Moreover, the record reflects that, during the applicable appeal period, the Veteran was able to take vacation and travel to Florida to visit friends. This evidence does not equate to occupational and social impairment, with deficiencies in most areas. The Board emphasizes that, although the Veteran reported during the April 2015 VA examination that there had been a period of time when he had thoughts of how to kill himself involving shooting, hanging, or overdose, the VA examiner noted that the Veteran did not currently have suicidal ideations. The Veteran's statement regarding his suicidal thoughts implies that they occurred at some point prior to the September 2015 VA examination. Moreover, the Veteran's VA treatment records, dated prior to the April 2015 VA examination and during the relevant appeal period, reflect that the Veteran denied any thoughts of killing himself. Likewise, during the applicable appeal period, the preponderance of the evidence is against a finding that the Veteran had suicidal ideations during/prior to his September 2015 VA examination. The Board also acknowledges the Veteran's September 2015 reports that he had suicidal thoughts in June 2015 due to his pain. These reported symptoms, however, appeared to be temporary/fleeting as the Veteran's contemporaneous VA treatment records from June 2015 note that he was doing fine and, although he used to have a death wish, he denied any intention of harming himself. The Veteran's most recent VA treatment records also show the Veteran's repeatedly denied any suicidal or homicidal ideations. As the Board has indicated, the Veteran's suicidal thoughts were, at most, temporary and fleeting and, in consideration with his other psychiatric symptoms, were not severe enough to cause occupational and social impairment, with deficiencies in most areas, or otherwise meet the criteria for a higher 70 percent rating. In sum, for the period from November 12, 2014 to August 25, 2016, the preponderance of the evidence is against a rating in excess of 50 percent for PTSD, and the claim for an increased rating is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disorder is remanded. The Veteran's treatment records document a diagnosis for a lumbar spine disorder. The Veteran also suggested that such disorder was associated with his in-service motor vehicle accident that occurred in February 1964. See December 2008 Hearing Transcript. The Veteran's service treatment records (STRs) reflect that he was in a motor vehicle accident in February 1964 and his private physician provided a speculative statement suggesting that the Veteran's back injury may not have been apparent at the time of accident and could have developed 10 to 15 years after initial trauma. The Board acknowledges that, while the Veteran underwent a VA examination in October 2009 and the VA examiner rendered a positive nexus opinion, such opinion was based on STRs from the wrong veteran. Likewise, that opinion is inadequate. Since then, the Veteran has not been afforded a VA medical opinion for this claim and the Board finds that the above evidence is at least sufficient to trigger VA's duty to obtain an adequate VA medical opinion to assess the etiology of the lumbar spine disorder. See McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006); see also 38 C.F.R. § 3.159(c). Accordingly, remand is warranted for a VA medical opinion consistent with the directives herein. 2. Entitlement to a TDIU is remanded. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran's service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran's claim remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is, thus, also required. The matters are REMANDED for the following action: Obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran's lumbar spine disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's lumbar spine disorder had its onset in, or is otherwise related to, the Veteran's active duty service, to include the motor vehicle accident that occurred in February 1964. In rendering the above opinion, the examiner is instructed to consider and discuss the STR showing back pain in February 1963 and the April 2013 private medical statement suggesting that the Veteran's lumbar spine disorder could have developed 10 to 15 years after his initial trauma. (Continued on the next page) A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.