Citation Nr: 21064666 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-15 068 DATE: October 21, 2021 ORDER From November 22, 2013, entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a rating greater than 0 percent for bilateral hearing loss is remanded. Entitlement to service connection for a cardiac disorder is remanded. Entitlement to service connection for sleep apnea is remanded. From November 22, 2013, entitlement to an initial rating greater than 70 percent for PTSD is remanded. Entitlement to a rating greater than 10 percent for a low back disorder is remanded. Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 for a May 2017 low back surgery is remanded. Entitlement to a separate rating for radiculopathy of the right lower extremity is remanded. Entitlement to a separate rating for radiculopathy of the left lower extremity is remanded. Entitlement to a rating greater than 10 percent for bilateral pes planus is remanded. Entitlement to a rating greater than 10 percent for hypertension is remanded. Entitlement to service connection for headaches is remanded. Entitlement to a rating greater than 0 percent for right epididymitis is remanded. Entitlement to service connection for erectile dysfunction (ED) is remanded. Entitlement to a rating greater than 20 percent for a cervical disorder is remanded. Entitlement to a separate rating for radiculopathy of the right upper extremity is remanded. Entitlement to a separate rating for radiculopathy of the left upper extremity is remanded. Entitlement to a rating greater than 0 percent for a right ankle disorder is remanded. FINDING OF FACT From November 22, 2013, the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW From November 22, 2013, the criteria for an initial rating of 70 percent for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1981 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of June 2014 and September 2014 of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned in June 2021. A transcript of the hearing is in the claims file. Issue 1: Entitlement to a rating greater than 50 percent for PTSD from November 22, 2013 Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where 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. The law allows for an effective date up to one year prior to the date of receipt of a claim, sometimes informally called "the one-year lookback period." 38 C.F.R. § 3.400(o)(2). Specifically, if an increase in disability level was "factually ascertainable" within one year prior to receipt of the increased rating claim, then the effective date will be the date on which that increase is shown to have occurred. Merits The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 are rated according to the General Rating Formula for Mental Disorders. The rating criteria for psychological disorders such as PTSD provide a 10 percent rating for occupational and social impairment due to mild or transient symptoms which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is provided for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is provided 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is provided 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. A 100 percent rating is provided 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. 38 C.F.R. §§ 4.125-4.130. VA service connected the Veteran's PTSD in June 2014. It rated the PTSD as 50 percent disabling, effective November 22, 2013. The Veteran appealed the rating in July 2014. In relevant part, a May 2014 VA compensation examination is of record. To frame the issue, the Board starts with the AOJ's June 2014 rating decision. In it, the AOJ found that the Veteran merited a 50 percent rating, explaining: We have assigned a 50 percent evaluation for your posttraumatic stress disorder based on: Suicidal ideation Inability to establish and maintain effective relationships Disturbances of motivation and mood Difficulty in establishing and maintaining effective work and social relationships Panic attacks more than once a week Impaired judgment Forgetting directions Forgetting recent events Mild memory loss Forgetting names Depressed mood Chronic sleep impairment Anxiety Suspiciousness Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) Mindful that the first symptom cited above is suicidal ideation, the Board highlights Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). In Bankhead, the U.S. Court of Appeals for Veterans Claims (Court) held that suicidal ideation means a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, and does not require suicidal intent, a plan, or prepatory behavior. The Court also held that the language of the general rating formula indicates that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, i.e., a 70 percent rating. Although the presence or absence of a specific sign or symptom listed in the psychiatric evaluation criteria is not necessarily dispositive of any particular disability level, the Board must adequately assess evidence of a symptom experienced by a veteran. To that end, the Veteran's August 2014 NOD addendum detailed his symptoms, including "increased suicidal thoughts and gestures difficulty realizing and maintaining relevance in family structure." Additionally, the Veteran testified, competently and credibly, in June 2021 to the severe impact PTSD, including suicidal ideation, has on his activities of daily living. After the Veteran testified, he submitted a statement in June 2021 to summarize his symptoms: Things I experience All the Time: "Attempting routine daily activities; working, driving, walking, traveling, trying to participate in social activities, or just doing things around the house: I find myself noticing every piece of debris, avoiding, people, cracks, potholes or any obstacle or obstruction, etc..." All these things coupled with frequent thoughts of Suicide; More than 5-7 Seven Times a Month; Nightmare and Hallucinations are frequent events. All triggered by related workday events, actions and/or thoughts tied to Traumatic Events... Feeling upset by things that remind you of what happened in my past Having nightmares, vivid memories, or flashbacks the event that make you feel like things are happening all over again Feeling emotionally cut off from others Feeling numb or losing interest things you used to care about Being Depressed and wanting to be alone I feel I'm in a constant state of danger, being under attack (I don't feel secure in any environment) More often than not I feel anxious, "jittery", and irritated about everything; often resulting in rages of anger Always feel like something is about to happen, a sense of panic I try, often without success to avoid places or things that remind me of ill, "events that trigger bad actions" things that have occurred I can't sleep or often don't want to go to sleep Can't stay focused or keep my mind on one thing (brain feels crowded with too many things) Often while trying to read, I drift off or reflect on a past event or just drift into thoughtlessness with no recall Short memory span No interest in sex or affection (wife asks me for sex and I can't perform) Can't relate to wife, family, friends, acquaintances or friends I have found some resolve in drinking beer (wife says excessively) after a reflection or flashback "Drinking helps clear the thoughts away" I like being isolated or away from others I prefer solitude; don't trust anyone At work providing instruction, I have difficulty holding thoughts, get confused and with onset of anxiety attack; can't following and must disengage and relieved by teammates to complete my tasks... The record, holistically viewed, reveals the Veteran's disability symptoms have been consistent over time and present throughout the appeal period. These symptoms, which include near-continuous panic or depression; inability to establish and maintain effective relationships; chronic sleep impairment; and suicidal ideation, show the Veteran meets the criteria for a 70 percent rating from November 22, 2013. The Board will address the issue of a rating greater than 70 percent in the Remand section below. REASONS FOR REMAND Hearing Loss, Sleep Apnea, and Cardiac Disorder In a June 2014 rating decision, the AOJ adjudicated 10 issues, and it deferred adjudication of two issues. Of the 10 issues adjudicated, one was a grant of service connection for bilateral hearing loss. It rated the disability as 0 percent disabling, effective November 22, 2013. The two issues which the AOJ deferred were entitlement to service connection for sleep apnea and a cardiac disorder. In July 2014, the Veteran submitted a Notice of Disagreement (NOD) with the June 2014 rating decision. In August 2014, the Veteran submitted an itemized listing of the issues he was appealing from the June 2014 rating decision. He identified nine issues including the deferred issues of sleep apnea and a cardiac disorder. In a September 2014 rating decision, the AOJ adjudicated the sleep apnea and cardiac issues, denying both. In March 2015, the Veteran resubmitted the NOD he submitted in July 2014. He also resubmitted the August 2014 statement, but he amended it to include an issue he had not previously appealed from the June 2014 rating decision entitlement to a rating greater than 0 percent for bilateral hearing loss. The Board construes the resubmission of the NOD and amended statement to be a valid NOD of the hearing loss, sleep apnea, and cardiac disorder issues. In February 2018, the AOJ issued a Statement of the Case in this appeal. The AOJ did not include the hearing loss, sleep apnea, or cardiac disorder issues in the SOC. Because it did not, the Board finds remand is necessary pursuant to Manlincon v. West, 12 Vet. App. 238 (1999) to issue an SOC for these issues. PTSD The Veteran testified in June 2021 that he was treated at Atlanta Psychotherapy and the Fort McPherson VA medical facility for his PTSD. Records from Atlanta Psychotherapy are not in the claims file. Additionally, the most recent VA treatment records from Fort McPherson date from February 2018. Remand is warranted to attempt to obtain the Atlanta Psychotherapy records and updated records from Fort McPherson. Additionally, the Veteran testified that his PTSD has worsened since his April 2014 VA examination. Given that 7.5 years have passed since his last exam and his testimony of worsening, the Board finds the Veteran merits a new examination. Low Back Disorder, Temporary Total Evaluation, and Radiculopathy of the Lower Extremities The Veteran claimed an increased rating for his low back disorder in November 2013. VA examined him in April 2014. The AOJ denied an increase in June 2014. In June 2021, the Veteran testified that his symptoms have worsened since his April 2014 examination. Given that 7.5 years have passed since his last exam and his testimony of worsening, the Board finds the Veteran merits a new examination. Additionally, the Veteran submitted treatment records on July 27, 2021, from South Atlanta Neurosurgery. These records, as relevant here, show a lumbar surgery on May 16, 2017, and diagnoses of "radiculopathy, lumbar region." Therefore, the Board has jurisdiction of these issues as part of the increased rating appeal for the low back disorder, and it has added them as appellate issues. Bilateral Pes Planus The Veteran claimed an increased rating for his bilateral pes planus in November 2013. VA examined him in April 2014. The AOJ denied an increase in June 2014. In June 2021, the Veteran testified that his symptoms have worsened since his April 2014 examination. Given that 7.5 years have passed since his last exam and his testimony of worsening, the Board finds the Veteran merits a new examination. Hypertension and Headaches The Veteran claimed an increased rating for his hypertension in November 2013. VA examined him in April 2014. The AOJ denied an increase in June 2014. In June 2021, the Veteran testified that his symptoms have worsened since his April 2014 examination. Given that 7.5 years have passed since his last exam and his testimony of worsening, the Board finds the Veteran merits a new examination. Additionally, the Veteran testified that he has headaches, which he contends are secondary to his hypertension. The Board, pursuant to Bailey v. Wilkie, 33 Vet. App. 188 (2021), has jurisdiction of the issue of entitlement to service connection for headaches, and as such, has added it above. In Bailey, the United States Court of Appeals for Veterans Claims (CAVC) noted that 38 C.F.R. § 3.155(d)(2) provides, in relevant part, that VA will also consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition, including those identified by the rating criteria for that condition in 38 CFR Part 4, VA Schedule for Rating Disabilities. The CAVC also noted that "complications" are not defined by regulation and, after citing several dictionary definitions, concluded that the ordinary meaning of "complications" in 38 C.F.R. § 3.155(d)(2) encompasses disabilities caused or aggravated by treatment for a service-connected disability. The CAVC acknowledged that VA amended 38 C.F.R. §§ 3.155(d)(2) and 3.160 to eliminate the concept of informal claims, but it found that the amendments did "not alter VA's general practice of identifying and adjudicating issues and claims that logically relate to and arise in connection with a claim pending before VA." 79 Fed. Reg. 57,660, 57,673 (Sept. 25, 2014) (final rule). The CAVC rejected the Secretary's reliance on Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020), Manzanares v. Shulkin, 863 F.3d 1374 (Fed. Cir. 2017), and Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008), in support of the position that the Board was not required to address the secondary service connection claims. The CAVC concluded that VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability. Here, entitlement to service connection for headaches was reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for hypertension. Right Epididymitis and Erectile Dysfunction (ED) The Veteran claimed an increased rating for his right epididymitis in November 2013. VA examined him in April 2014. The AOJ denied an increase in June 2014. In June 2021, the Veteran testified that his symptoms have worsened since his April 2014 examination. Given that 7.5 years have passed since his last exam and his testimony of worsening, the Board finds the Veteran merits a new examination. Additionally, the Veteran testified that he has ED, which he contends is secondary to his right epididymitis. The Board, pursuant to Bailey v. Wilkie, 33 Vet. App. 188 (2021), has jurisdiction of the issue of entitlement to service connection for ED, and as such, has added it above. Notably, the April 2014 VA examiner diagnosed ED, but he said the etiology was unknown. It does not appear VA posed the customary secondary service connection questions to the examiner to answer for the ED. The Board will order a new examination for the ED in addition to the right epididymitis. Cervical Disorder and Radiculopathy of the Upper Extremities The Veteran claimed an increased rating for his cervical disorder in November 2013. VA examined him in April 2014. The AOJ denied an increase in June 2014. In June 2021, the Veteran testified that his symptoms have worsened since his April 2014 examination. Given that 7.5 years have passed since his last exam and his testimony of worsening, the Board finds the Veteran merits a new examination. Additionally, the Veteran submitted treatment records on July 27, 2021, from South Atlanta Neurosurgery. These records, as relevant here, show a lumbar surgery on May 16, 2017 and a diagnosis of "other spondylosis with radiculopathy, cervical region." Therefore, the Board has jurisdiction of these issues as part of the increased rating appeal for the cervical disorder, and it has added them as appellate issues. Right Ankle Disorder The Veteran claimed an increased rating for his right ankle disorder in November 2013. VA examined him in April 2014. The AOJ denied an increase in June 2014. In June 2021, the Veteran testified that his symptoms have worsened since his April 2014 examination. Given that 7.5 years have passed since his last exam and his testimony of worsening, the Board finds the Veteran merits a new examination. The matters are REMANDED for the following action: 1. Attempt to obtain all treatment records from Atlanta Psychotherapy. The Veteran testified in June 2021 that he is treated at Atlanta Psychotherapy for his PTSD. 2. Attempt to obtain all VA treatment records from the Decatur, Fort McPherson, and Stockbridge VA facilities, all of which are located in Georgia, from February 2018 to present. 3. Issue an SOC for entitlement to a rating greater than 0 percent for bilateral hearing loss, entitlement to service connection for sleep apnea, and entitlement to sleep apnea for a cardiac disorder, and notify the Veteran of his appellate rights if the issues are not granted in full. 4. Schedule the Veteran for a VA examination to determine the nature and severity of the Veteran's PTSD. 5. Schedule the Veteran for a VA examination to determine the nature and severity of the Veteran's low back disorder. As part of this examination, document the nature and circumstances of the Veteran's May 2017 lumbar surgery, as indicated in records submitted from South Atlanta Neurosurgery on July 27, 2021. As part of this examination, the examiner must answer the following questions: a) Does the diagnosis of "radiculopathy, lumbar region," as seen in treatment records submitted on July 27, 2021, from South Atlanta Neurosurgery, apply to the Veteran's right lower extremity, left lower extremity, or both? b) If the diagnosis of "radiculopathy, lumbar region," applies to the right lower extremity, is it at least as likely as not (50 percent probability) that the Veteran's low back disorder CAUSED his radiculopathy of right lower extremity? Why or why not? c) If the diagnosis of "radiculopathy, lumbar region," applies to the right lower extremity, is it at least as likely as not (50 percent probability) that the Veteran's low back disorder AGGRAVATES his radiculopathy of right lower extremity? Why or why not? d) If the diagnosis of "radiculopathy, lumbar region," applies to the right lower extremity, when did his radiculopathy of right lower extremity first manifest? The Board recognizes this is a difficult question to answer, but it needs it answered because it impacts the effective date of a potential grant of benefits. e) If the diagnosis of "radiculopathy, lumbar region," applies to the left lower extremity, is it at least as likely as not (50 percent probability) that the Veteran's low back disorder CAUSED his radiculopathy of left lower extremity? Why or why not? f) If the diagnosis of "radiculopathy, lumbar region," applies to the left lower extremity, is it at least as likely as not (50 percent probability) that the Veteran's low back disorder AGGRAVATES his radiculopathy of left lower extremity? Why or why not? g) If the diagnosis of "radiculopathy, lumbar region," applies to the left lower extremity, when did his radiculopathy of left lower extremity first manifest? The Board recognizes this is a difficult question to answer, but it needs it answered because it impacts the effective date of a potential grant of benefits. A complete rationale should be provided for each opinion rendered. 6. Schedule the Veteran for a VA examination to determine the nature and severity of the Veteran's bilateral pes planus. 7. Schedule the Veteran for a VA examination to determine the nature and severity of the Veteran's hypertension. 8. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed headaches. The examiner should answer the following questions: a) Identify any headache disability by (1) diagnosis or (2) pain that results in functional impairment. b) Is it at least as likely as not (50 percent probability) that the Veteran's hypertension CAUSED his headaches? Why or why not? c) Is it at least as likely as not (50 percent probability) that the Veteran's hypertension AGGRAVATES his headaches? Why or why not? A complete rationale should be provided for each opinion rendered. 9. Schedule the Veteran for a VA examination to determine the nature and severity of the Veteran's cervical disorder. As part of this examination, the examiner must answer the following questions: a) Does the diagnosis of "other spondylosis with radiculopathy, cervical region," as seen in treatment records submitted on July 27, 2021, from South Atlanta Neurosurgery, apply to the Veteran's right upper extremity, left upper extremity, or both? b) If the diagnosis of "other spondylosis with radiculopathy, cervical region" applies to the right upper extremity, is it at least as likely as not (50 percent probability) that the Veteran's cervical disorder CAUSED his radiculopathy of the right upper extremity? Why or why not? c) If the diagnosis of "other spondylosis with radiculopathy, cervical region" applies to the right upper extremity, is it at least as likely as not (50 percent probability) that the Veteran's cervical disorder AGGRAVATES his radiculopathy of the right upper extremity? Why or why not? d) If the diagnosis of "other spondylosis with radiculopathy, cervical region" applies to the right upper extremity, when did his radiculopathy of the right upper extremity first manifest? The Board recognizes this is a difficult question to answer, but it needs it answered because it impacts the effective date of a potential grant of benefits. e) If the diagnosis of "other spondylosis with radiculopathy, cervical region" applies to the left upper extremity, is it at least as likely as not (50 percent probability) that the Veteran's cervical disorder CAUSED his radiculopathy of the left upper extremity? Why or why not? f) If the diagnosis of "other spondylosis with radiculopathy, cervical region" applies to the left upper extremity, is it at least as likely as not (50 percent probability) that the Veteran's cervical disorder AGGRAVATES his radiculopathy of the left upper extremity? Why or why not? g) If the diagnosis of "other spondylosis with radiculopathy, cervical region" applies to the left upper extremity, when did his radiculopathy of the left upper extremity first manifest? The Board recognizes this is a difficult question to answer, but it needs it answered because it impacts the effective date of a potential grant of benefits. A complete rationale should be provided for each opinion rendered. 10. Schedule the Veteran for a VA examination to determine the nature and severity of the Veteran's right ankle disorder. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.