Citation Nr: 21066531 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 20-18 459 DATE: November 1, 2021 ORDER Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) from July 6, 2020 is granted. Entitlement to an effective date earlier than April 9, 2018 for the grant of service connection for PTSD is denied. REMANDED Entitlement to a rating in excess of 10 percent for a lumbar spine disability is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, since July 6, 2020 his PTSD has manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as depressed mood, anxiety, flattened affect, impaired judgment, chronic sleep impairment, disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, impaired impulse control, and difficulty in adapting to stressful circumstances. 2. There is no evidence the Department of Veterans Affairs (VA) granted entitlement to service connection for PTSD based on relevant official service department records that existed but had not been associated with the claims file prior to the issuance of a January 1973 decision denying the Veteran's claim of entitlement to service connection for a psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 70 percent disability rating for PTSD from July 6, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to an effective date earlier than April 9, 2018 for the award of service connection for PTSD have not been met. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1965 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2018 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the VA. The Board has advanced this case on the docket pursuant to 38 U.S.C. § 7107(b)(3). 38 C.F.R. § 20.900(c) 1. Entitlement to a rating in excess of 50 percent for PTSD The Veteran was granted an initial rating of 50 percent for PTSD from the date of his claim, April 9, 2018. In his April 2020 Form 9 appeal, the Veteran asserted entitlement to a 70 percent rating. 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In this case, the Veteran's PTSD is rated under DC 9411, utilizing the General Rating Formula for Mental Disorders. Under this 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. A 70 percent rating is assigned where there is evidence of 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; obsession 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. Id. A 100 percent rating requires 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. Evaluation under § 4.130 is 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). The Federal Circuit explained that the frequency, severity, and duration of the symptoms also played an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that 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. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Accordingly, in evaluating the Veteran's disability the Board will place great probative value on the Veteran's observable symptoms as demonstrated in clinical treatment notes and mental status evaluations. The Veteran was afforded a June 2018 VA psychological examination in conjunction with his claim. The examiner noted a diagnosis of PTSD and observed the Veteran was appropriate in appearance, with an anxious mood, flat affect, as well as logical thought and speech processes. He denied perceptual disturbances or harmful ideations. The Veteran stated he was currently single after his five previous marriages ended in divorce. He stated he lived with his eldest son, daughter in law and grandchildren, with whom he had good relationships, but that he was estranged from his youngest son. The Veteran indicated he had not worked since approximately five months in 2014 when he had to quit because the job took "a lot of patience, and I was really stressed out." He denied taking medications to treat his PTSD symptoms, but reported he was going to begin therapy with the VA. The examiner concluded the Veteran's PTSD manifested as 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 due to symptoms of depressed mood, flattened affect, chronic sleep impairment, disturbances of motivation or mood, difficulty in stablishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. In July 2018, the Veteran attended an initial evaluation for VA treatment. He was described as pleasant and fully oriented. In February 2019, he indicated a desire to begin psychological therapy and was assessed as continuing to suffer from PTSD. The Veteran stated that although he had learned to control his symptoms over the years, they were increasingly affecting him since his prostate cancer diagnosis. He reported living with his fiancé of one year, and related that his friends and family were supportive with his ongoing medical issues. He denied current suicidal or homicidal ideations. The VA clinician noted he was appropriate in appearance, pleasant, cooperative, with clear and organized thoughts and speech, a euthymic mood, and no indication of psychosis or harmful ideations. He was assessed as demonstrating minimal depression or anxiety symptoms, but testing was positive for mania behaviors. The Veteran attended nine VA psychological treatment sessions from February to August 2019. In August 2019 he presented as alert, oriented, pleasant and cooperative, with a good mood and euthymic affect. His speech was within normal limits and his thoughts were logical and goal directed. The treating clinician noted the Veteran demonstrated increased flexibility in cognition, no evidence of a thought disorder, good motivation and no expressed harmful ideations. The Veteran self-reported significant benefits from the treatment including increased communication with his family as well as decreased anger, reactivity and feelings of guilt. His treating clinician observed that he had achieved significant clinical improvement in functioning and stated additional sessions were no longer needed. During a February 2020 VA evaluation, the Veteran stated he had possessed a "death wish" syndrome in the past, engaging in dangerous activities for fun and work. However, he stated he "never has tried" to intentionally harm himself and denied any suicidal ideation. He was assessed as non-risk to himself or others and participated in February and March 2020 group therapy until it was canceled due to the Covid-19 epidemic. During a March 2020 phone evaluation, the Veteran reported he was "doing well," living with his fiancé and continuing to engage in self-care. The VA clinician observed a euthymic mood, no evidence of hallucinations or thought disturbance, and noted the Veteran demonstrated speech, insight and judgment within normal limits while denying harmful ideations. In April 2020 correspondence, the Veteran indicated that his PTSD continued to have a profound effect on his daily life. Although primarily cataloguing past symptoms, he also reported difficulty controlling his anger and irritability, including while driving, as well as "violent thoughts when I get very angry." The Veteran stated that he still struggled to maintain relationships in his life, relating that he and his youngest son had not spoken in over a year and that anger almost cost him his current relationship with his girlfriend of two years, who had kicked him out multiple times because he is "too quick to anger." He also reported continuing to feel on guard, anxious and depressed on a frequent basis, especially when leaving the house. He described occasional symptoms of anxiety and paranoia as well. The Veteran was afforded an additional VA psychological examination in July 2020. He was described as appropriate in appearance and cooperative, with normal speech, attention span, thoughts, judgment and insight. His mood and affect were euthymic, and he denied harmful ideations or delusions. The Veteran reported that since Covid-19 he remained socially active but practiced social distancing, and that he continued to live with his girlfriend but stayed with others during relationship problems. He related seeing his older son and grandchildren regularly but reported he remained estranged from his younger son, blaming his temper. The Veteran described difficulty getting along with his girlfriend and the general public because of his irritability, but also stated his recent VA treatment was very helpful, and he indicated that he had not experienced problematic angry outbursts or confrontations since finishing therapy. The examiner concluded that the Veteran's PTSD manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood due to symptoms of anxiety, impaired judgment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and an inability to establish and maintain effective relationships. Prior to April 2020, the frequency and severity of the Veteran's symptoms appear to be squarely within the bounds contemplated by the 50 percent rating criteria. The frequency and severity of his symptoms, as evaluated by both a VA examiner and treating VA clinicians, manifested as at most occupational and social impairment with reduced reliability and productivity due to symptoms of depressed mood, flattened affect, chronic sleep impairment, disturbances of motivation or mood, difficulty in stablishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. However, the evidence attached to the claims file since then is mixed. The Veteran's April 2020 correspondence and July 2020 VA examination indicate a worsening in the Veteran's PTSD symptomology, while his clinical treatment records and own self-assessment indicate improvement, with no angry outbursts or confrontations since the completion of his nine sessions of VA treatment. The Board must interpret various examination reports and lay assessments in light of the entire medical history, reconciling any contrary findings into a consistent picture. 38 C.F.R. § 4.2. After reviewing the relevant evidence, the Board finds that the Veteran has manifested symptoms listed in both the 50 and 70 percent rating criteria throughout the period on appeal. He has at times manifested symptoms from the 50 percent and lower criteria to include those described above, as well as 70 percent symptoms including impaired impulse control, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. However, the Board notes that the frequency and severity of the last symptom is difficult to assess, as while he remains estranged from his younger son due and described difficulties with his fiancé due to his anger issues, he has consistently reported strong relationships with his other son, daughter in law, and grandchildren. The Board finds the Veteran competent to report the frequency and severity of his PTSD symptoms and finds his statements to be probative. However, the Board finds the VA clinical and examination assessments of his symptomatology to be more highly probative, as they give a clearer picture of his current symptomatology than the Veteran's primarily retrospective April 2020 correspondence. Resolving reasonable doubt in the Veteran's favor, the Board finds that he has more nearly approximated the 70 percent rating criteria since his July 6, 2020 VA examination. Prior to this date, the Board cannot factually ascertain that the frequency and severity of the Veteran's PTSD symptoms more closely approximated the 70 percent criteria, as his VA examination and clinical records indicate a symptomatology approximating the 50 percent and lower criteria, and his own self-assessments are variable. The Board also finds that a rating in excess of 70 percent is not warranted for any time during the appeal period. As referenced previously, a 100 percent disability rating is warranted for PTSD symptoms manifesting 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Veteran has consistently presented as appropriate in appearance and fully oriented with normal thought and speech processes. There is no indication he is unable to manage the activities of daily living or is a persistent danger to himself or others. Finally, his ability to maintain a relationship with a significant other, friends and family indicate that he does not manifest "total" social and occupational impairment. 2. Entitlement to an effective date prior to April 9, 2018 for the grant of service connection for PTSD The Veteran asserts entitlement to an effective date for the service connection of his PTSD prior to April 4, 2018, the date of his claim. In April 2020 correspondence, the Veteran's representative claimed entitlement to an effective date in December 1970, based on a January 1973 AOJ decision denying entitlement to service connection for a psychiatric disorder. In December 1970 the Veteran's parents made a claim on his behalf while he was institutionalized for paranoid schizophrenia from November 1970 to September 1971. The representative's correspondence cited 38 C.F.R. § 3.156(c)(1), which states: Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. It also cited 38 C.F.R. § 3.156(c)(3), which states an "award made or based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously denied claim." The representative noted that the September 2018 AOJ decision granting entitlement to service connection for PTSD was based in part on service records indicating the Veteran's participation in combat operations, which proved his exposure to trauma and stressful circumstances during service, and noted it included as evidence "Service Personnel Records ... received May 22, 2018." The representative concluded that as these records were relevant to the Veteran's claim but not attached to the case file at the time of the 1973 denial, VA is required to reconsider the Veteran's claim for service connection from the December 1970 date of claim. This correspondence also cites Emerson v. McDonald, 28 Vet. App. 200 (2016), in arguing that the "original" December 1970 claim must be reconsidered. In Emerson, the Veteran had been granted service connection for PTSD based upon a liberalizing law, but service connection had been previously denied based on his inability to show a qualifying stressor-event during his service. Service department records were associated after the claim was granted, and the Veteran sought an effective date from his first claim on the basis that if the service records had been obtained in conjunction with the first claim, it would have been granted. The Court held that reconsideration of the first PTSD claim was required, notwithstanding the fact that PTSD had ultimately been granted. Id. at 210. The relevant question at issue in this matter is whether VA received or associated with the claims file official service department records relevant to the Veteran's claim for service connection for an acquired psychiatric disorder that existed in January 1973 but had not been associated with the claims file at that time. In this case, as noted above, the Veteran's parents filed a December 1970 claim on his behalf after he was hospitalized by court order in November 1970. A January 1971 supplemental claim included a claim for right shoulder residuals from an inservice car accident. Later that month, the AOJ deferred deciding the claims until VA could acquire the Veteran's service treatment records. In May 1972, a date stamp indicates the Veteran's DD-214 separation document was attached to the claims file. This document noted the Veteran was awarded the Combat Infantryman Badge, bestowed on those servicemembers who fought in active ground combat, as well as the Meritorious Unit Commendation. Between April and August 1972, the Veteran's service personnel records were transferred to the AOJ, and an April 1973 rating decision noted that the Veteran's service records had been added to the file. The records attached to the file at the time of the decision also included the Veteran's post-service inpatient treatment records, which note his combat service in Vietnam and include his description of seeing a close friend die. In a January 1973 decision the AOJ denied entitlement to service connection for a schizophrenic reaction on the basis that the Veteran's disability was the result of his own willful misconduct, in this case drug abuse. The Veteran was notified of this decision in February 1973 correspondence and did not file an appeal or submit additional evidence within one year, and if became final. The Board recognizes that a claim of entitlement to service connection for PTSD specifically had not arisen at that time, as the Veteran had not been diagnosed with PTSD. However, a claim for a specific psychiatric disorder must be considered a claim for any mental disability that may reasonably be encompassed. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). While there are similar facts shared by this case and Emerson, there are also several key differences. A review of the record indicates that the Veteran's service records were part of the claims file when the AOJ originally denied his claim of entitlement to service connection for an acquired psychiatric disorder. Additionally, it is clear from the Veteran's DD-214 separation document and post-treatment records, both attached to the file at the time of the decision, that he experienced combat in Vietnam, including the traumatic incident of witnessing a friend's death. While the Board concedes that the August 2018 AOJ decision granting entitlement to service connection for PTSD was based partially on evidence of inservice combat, this information was part of the claims file when the AOJ denied his "original" claim for a psychiatric disorder in January 1973. The Board concludes that the AOJ was in possession of all relevant evidence in existence at the time of the January 1973 denial of entitlement to service connection for an acquired psychiatric disorder. Additionally, the "original" AOJ denial was not based on lack of corroboration of an inservice stressor, but on the Veteran's own willful misbehavior. As such, the liberalizing of rules regarding PTSD stressors is not relevant. 38 C.F.R. § 3.156(c) "serves to place a veteran in the position he would have been had the VA considered the relevant service department record before the disposition of his earlier claim." Blubaugh v. McDonald, 773 F.3d 1310, 1313 (2014). In this case, there is no evidence VA did not have access to or consider the Veteran's relevant service records before deciding the claim, and the Board finds there is no other legal basis to assign an effective date earlier than April 4, 2018. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for a lumbar spine disability is remanded. The Veteran's lumbar spine disability has been rated as 10 percent disabling under various diagnostic codes since 1970. In June 2018 he filed a claim for increased rating and was afforded a July 2018 VA spine examination. The examiner indicated the Veteran did not report flareups but claimed he was limited in his ability to bend down and twist and that he described pain, weakness and fatigability or incoordination as significantly limiting functional use over time. The examiner stated she was "unable to describe in terms of [range of motion] loss because this will depend on the type of activity performed and severity of pain experience by the claimant." In a February 2020 addendum, a separate VA examiner noted a progression of the Veteran's lumbar spine disorder to degenerative joint disease but characterized it as "mild in severity." The Board finds the July 2018 VA examination to be inadequate for rating purposes. Specifically, the examiner did not attempt to elicit relevant information regarding the severity of the Veteran's functional loss after repetitive use over time. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Board also notes that in April 2020 correspondence, the Veteran reported pain and limited range of motion in his back, and that he stated "flareups will frequently sideline me completely." Given the Veteran's report of worsening symptoms and VA's duty to provide him with a thorough and contemporaneous medical examination, remand is required. See Green v. Derwinski,1 Vet. App. 121, 124(1991). 2. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is intertwined with the issue of entitlement to an increased rating for a lumbar spine disability that is being remanded for an additional VA examination. Issues are considered to be inextricably intertwined when a determination on one issue could have a significant impact on the outcome of another. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the Board defers consideration of the issue at this time. The matters are REMANDED for the following action: 1. Obtain updated VA and relevant private treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. The examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees, and have the Veteran describe the frequency and duration of these flares. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner may comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. To the extent possible, the examiner should identify any symptoms and functional impairments due this disorder alone and discuss the effect on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A complete medical rationale for all opinions must be provided. 3. Thereafter, readjudicate the claims, including entitlement to a TDIU. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period to respond before returning the case to the Board. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, Associate 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.