Citation Nr: 21067488 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-05 218 DATE: November 4, 2021 ORDER An initial disability rating of 70 percent for unspecified trauma-and stressor-related disorder with unspecified depressive disorder is granted. An initial disability rating in excess of 10 percent for left wrist sprain is denied. An initial disability rating in excess of 10 percent for right wrist sprain is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of L3-4 and L4-5 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's psychiatric disability approximated occupational and social impairment with deficiencies in most areas. 2. The Veteran's left or right wrist disability does not approximate functional ankylosis. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent for psychiatric disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 10 percent for left wrist sprain have not been met. 38 U.S.C. §§ 5110, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5215. 3. The criteria for a rating in excess of 10 percent for right wrist sprain have not been met. 38 U.S.C. §§ 5110, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 2007 to November 2010, to include service in the Southwest Asia theater of operations during the Persian Gulf War. His decorations include the Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in San Diego, California. This case was most previously before the Board in January 2021. The Board also finds that there has been compliance with the prior remand directives as to the issues being decided in this decision. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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. Separate ratings can be assigned for separate periods based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). During the pendency of this appeal, the rating criteria for evaluating musculoskeletal disorders under 38 C.F.R.§4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. The amendments did not pertain to the diagnostic codes concerning the Veteran's wrists. 1. Initial disability rating for psychiatric disability The Veteran's service-connected psychiatric disorder (unspecified trauma-and stressor-related disorder with unspecified depressive disorder) is evaluated similarly to PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under that diagnostic code, a 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; 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); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. However, the symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). "[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 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126. In addition, the evaluation must be 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. 38 C.F.R. § 4.126. Psychiatric examinations frequently included assignment of a Global Assessment of Functioning (GAF) score. The Board notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). A December 2011 RO decision granted the Veteran service connection for an anxiety disorder and assigned a 10 percent rating, effective November 15, 2010. A December 2015 RO decision increased the rating of the Veteran's psychiatric disorder to 30 percent disabling, effective November 15, 2010, and a June 2019 Board decision increased the rating to 50 percent disabling, also effective November 15, 2010. In light of the July 2020 Joint Motion For Partial Remand, the Board will begin by specifically addressing suicidal ideation. The presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). In a private November 2020 psychosocial assessment the Veteran indicated that he had experienced "bouts" of doom and uncertainty, and further stated that he had experienced suicidal thoughts "on and off" since leaving Iraq. While perhaps not a continually overly-prominent component of the Veteran's psychiatric picture, the Board finds that suicidal ideation has been present enough (when considering reports of the same including in an April 2013 VA treatment record and November 2020 private PTSD DBQ) to constitute an important consideration in this case. In essence, the Board is unable to state that the Veteran has not had recurrent suicidal thoughts, despite denying such thoughts at multiple times during the appeal period. As for symptoms in addition to suicidal ideation, the Veteran's earlier VA treatment records (2012 to 2014) noted that the Veteran had significant road rage and would become angry over the smallest things, symptoms indicative of impaired impulse control. While no formal cognitive disorder has been found, a private November 2020 psychosocial assessment noted that the Veteran had intrusive thoughts and difficulty concentrating. At the November 2014 VA examination the Veteran related that he had spontaneous intrusive thoughts about the death of a friend in Iraq. The Board acknowledges that the frequency and severity of the Veteran's psychiatric symptoms have markedly varied at different times, as noted in the various examinations and treatment records discussed herein. For example, the March 2011 VA examiner noted that the Veteran had persistent visual hallucinations, some obsessive/ritualistic behavior, and some possible homicidal ideation. These symptoms are absent in later reports. Even so, the Board finds that the evidence warrants a rating of 70 percent during the entire appeal period, as the Veteran's psychiatric disability picture has tended to be productive of occupational and social impairment with deficiencies in most areas. The Board observes that the evidence does not demonstrate total social and occupational impairment. While some concentration problems have been noted, no gross impairment in thinking or communication was suggested by any of the examiners. The Veteran's disability picture and symptoms do not show a pattern of grossly inappropriate behavior. Further, disorientation to time or place, or an inability to perform activities of daily living to include maintaining minimal hygiene, has not been shown. Records indicate that the Veteran is currently employed and has been the past few years. The Veteran has maintained contact with his family and has friends that he can at least converse with. These factors do not equate to total impairment. Based on the foregoing, a rating in excess of 70 percent for psychiatric disability is not warranted. 2. Entitlement to a rating in excess of 10 percent for left wrist sprain. 3. Entitlement to a rating in excess of 10 percent for right wrist sprain. A December 2011 rating decision granted service connection for bilateral wrist strain and assigned a noncompensable rating, effective November 15, 2010. A December 2015 rating decision increased the rating for the Veteran's left and right wrist strain to 10 percent, effective November 24, 2014. A June 2019 Board decision granted the Veteran initial ratings of 10 percent for the left and right wrist disability, effective November 15, 2010. Under Diagnostic Code 5215, a 10 percent rating for the wrist is warranted for either limitation of palmar flexion in line with the forearm or limitation of dorsiflexion to less than 15 degrees. No higher disability evaluation under Diagnostic Code 5215 may be assigned for the Veteran's right wrist disability because 10 percent is the maximum evaluation under Diagnostic Code 5215. Further, where a musculoskeletal disability is currently evaluated at the maximum schedular rating based on limitation of motion, DeLuca consideration is not applicable. See Johnston v. Brown, 10 Vet. App. 80 (1997). The Board must also consider other potentially applicable diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (holding that the Board must consider all potentially applicable regulatory provisions). For major wrist ankylosis, a 30 percent evaluation is assigned for favorable ankylosis in the 20 degrees to 30 degrees dorsiflexion. A 40 percent evaluation is assigned for unfavorable ankylosis and a 50 percent evaluation is assigned for unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation. 38 C.F.R. § 4.71a, Diagnostic Code 5214. The Board must consider an evaluation based on ankylosis if the evidence shows limitation of motion that is the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). The Veteran's medical treatment providers have not diagnosed, or indicated there is evidence of, ankylosis in either wrist. The April 2021 wrist examination found no evidence of ankylosis in either wrist. The Board also finds that the functional equivalent of ankylosis was not present. The April 2021 VA examiner indicated that even during flare-ups, the Veteran still had range of motion in his wrists (right wrist dorsiflexion to 45 degrees and right wrist palmar flexion to 50 degrees; left wrist dorsiflexion to 50 degrees and left wrist palmar flexion to 40 degrees). The Board notes that the April 2021 wrist VA examination included specific and multiple findings as to the Veteran's functional impairment due to flare-ups, pain, and range of motion on active and passive motion. The Board has considered the Veteran's statements about problems with his wrists, and has noted his specific complaints of daily left wrist and right wrist pain and numbness that is worsened when working. Even when considering the Veteran's credible assertions, the functional equivalent of ankylosis has not been shown. In this regard, although the Veteran has complained of problems with his hands, he has not asserted that he has limitation of wrist motion that approximates complete limitation of motion of the wrists. Further, the Board here notes that the April 2021 VA examiner stated, after physical examination and review of the Veteran's medical history, that the Veteran's loss of right and left wrist range of motion was due to an "unrelated condition." In a June 2021 medical opinion, the examiner stated that the Veteran's complaints of numbness and paresthesia of 3rd, 4th, and 5th digits of both hands were not likely caused by the service-connected right and left wrist sprain. Based on the more probative evidence, the Board finds that the preponderance of the evidence is against finding that the Veteran's left or right wrist disability had manifested functional ankylosis, and a rating higher than 10 percent for left or right wrist disability is not warranted. Conclusion to rating claims The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit even more favorable determinations. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. Ap. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of L3-4 and L4-5. 2. Entitlement to TDIU. Although the Veteran underwent a VA spine examination in January 2020, the findings from that examination (especially concerning range of motion) appear to be quite divergent from the range of motion findings from a February 26, 2020 VA treatment record dated just one month subsequent. Also, the estimation by the January 2020 VA examiner indicating that the Veteran loses just 5 degrees of range of motion during flare-ups appears inconsistent with the Veteran's complaints. The Board finds that the medical evidence is not sufficient to determine the current severity of the Veteran's low back disability. Accordingly, remand is warranted for a VA spine examination. The issue of entitlement to a TDIU is impacted by the actions taken in this decision and must be readjudicated by the RO prior to consideration by the Board. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after July 29, 2021. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. 3. After any additional records are associated with the claims file, provide the Veteran with a VA examination to determine the current severity of the service-connected low back disability. The entire claims file must be made available to and be reviewed by the examiner. The examiner must utilize the appropriate Disability Benefits Questionnaire. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Nelson 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.