Citation Nr: 21069829 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-30 957 DATE: November 19, 2021 ORDER Entitlement to a 50 percent rating for posttraumatic stress disorder (PTSD) with alcohol use disorder for the period from July 21, 2014, through September 9, 2015, is granted. Entitlement to higher staged ratings for PTSD with alcohol use disorder for the period from September 10, 2015, to the present is denied. Entitlement to an effective date of April 12, 2016, and no earlier, for the grant of a total disability rating for compensation purposes due to individual unemployability (TDIU), is granted. REMANDED Entitlement to service connection for a lumbar spine condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for a right hip condition is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's PTSD with alcohol use disorder manifested functional impairment equivalent to occupational and social impairment with reduced reliability and productivity for the period from July 21, 2014, through September 9, 2015. 2. For the period since September 9, 2015, the Veteran's PTSD with alcohol use disorder has not manifested functional impairment equivalent to total occupational and social impairment to the extent that a total rating may be assigned. 3. The evidence is at least in equipoise as to whether he was unable to maintain substantially gainful employment due to service-connected disabilities from April 12, 2016, the first day after his last day of gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 50 percent rating, and no higher, for PTSD with alcohol use disorder for the period from July 21, 2014, to September 9, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.126, 4.130. 2. The criteria for entitlement to higher staged ratings for PTSD with alcohol use disorder for the period from September 10, 2015, to the present have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.126, 4.130. 3. The criteria for entitlement to an effective date of April 12, 2016, and no earlier, for the grant of TDIU have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.16, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1999 to March 2000; January 2003 to October 2003; January 2006 to February 2006; and July 2006 to May 2007, with additional service in the Marine Corps Reserve. He received the Iraq Campaign Medal, among other decorations. The Board sincerely thanks him for his honorable military service. These matters come before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a hearing in August 2021. A transcript of the hearing is associated with the claims file. The Board observes that the agency of original jurisdiction (AOJ) granted a TDIU effective October 31, 2016, the date of receipt of the Veteran's VA Form 21-8940. See Rating Decision Narrative, April 2017. Applicable law has held that a TDIU is part and parcel of an increased rating claim where unemployability is raised by the record or by the Veteran. Rice v. Shinseki, 22 Vet. App. 447 (2009). Moreover, where the AOJ grants a TDIU for part of the rating period, but not the entire rating period, the matter remains within the Board's jurisdiction. Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board will exercise jurisdiction over an earlier effective date for the TDIU, and adjudicate the matter in the relevant section. 1. Entitlement to a 50 percent rating for PTSD with alcohol use disorder for the period from July 21, 2014, through September 9, 2015, is granted. 2. Entitlement to higher staged ratings for PTSD with alcohol use disorder for the period from September 10, 2015, to the present is denied. Ratings for mental disorders are assigned based on the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, and 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. 38 C.F.R. § 4.126(a). Under the General Rating Formula, a 30 percent rating is assigned 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 symptoms such 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 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. A 70 percent rating is assigned 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 work like setting); and inability to establish and maintain effective relationships. A maximum 100 percent rating is assigned 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; and memory loss for names of close relatives, own occupation, or own name. The Veteran has received a 30 percent rating for PTSD with alcohol use disorder (hereinafter "PTSD") from July 21, 2014; a 70 percent rating from September 10, 2015; a 100 percent rating from November 10, 2015 (due to hospitalization); and a 70 percent rating from March 1, 2016. See Rating Decision Codesheet, April 2018. The question is whether his disorder has manifested functional impairment to the extent that higher staged ratings may be assigned at any point during the rating period. After careful review of the record, the Board finds that a 50 percent rating is warranted from July 21, 2014, through September 9, 2015. However, no other higher staged ratings are appropriate. 38 C.F.R. § 4.130. In reaching this conclusion, the Board has reviewed the medical evidence. The VA examiner in January 2015 opined that the Veteran's PTSD would result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. She noted symptoms for rating purposes including depressed mood, anxiety, and chronic sleep impairment. A mental status evaluation showed appropriate grooming; alert, pleasant, and cooperative with appropriate eye contact; speech in normal rate, rhythm, and tone; clear and coherent thought process; no evidence of obsessions, delusions, or impaired reality; and no suicidal or homicidal ideation, plan, or intent. She noted that the Veteran was working as a home health specialist, and he described his relationships with his wife and daughters as good. He reported having friends nearby that he saw about once a month and that his parents lived about four hours away and he saw them about two or three times a year. Private medical records from the Toledo Clinic reveal that the Veteran denied experiencing significant psychiatric distress during the period prior to September 10, 2015. For example, in November 2014, the Veteran stated that he was on Lexapro for his mental health symptoms and felt good. He denied having anxiety, depression, insomnia, and changes in concentration, memory, or mood. Similarly, in December 2014, the clinician noted that the Veteran was "emotionally well on Lexapro". In March 2015, the Veteran likewise reported that his PTSD symptoms were "all controlled" and he denied suicidal or homicidal ideation. The Veteran reported insomnia, but denied other significant symptoms, in July 2015. The Veteran submitted undated letters from his former co-workers including D.C., an advanced practice registered nurse, and S.G., a licensed independent social worker. D.C. stated, among other things, that she had been the Veteran's supervisor and had spoken with him as a medical professional about his PTSD symptoms. She indicated that he had problems with focus and staying on task, would become irritable and anxious at times needing time away to calm down and refocus, and endorsed depression with increased alcohol intake. S.G. stated, among other things, that over the past year the Veteran experienced complications at work including difficulty meeting production standards and difficulty getting along with co-workers stemming from lack of sleep, irritability, and difficulty concentrating. She noted that the Veteran had told her that his symptoms had increased in severity over the past year. She observed that the Veteran came to work disheveled, was overly-tired, and that his productivity decreased from about 85 percent to 60 percent when he was struggling with PTSD symptoms. She stated that he had difficulty performing the job at an acceptable level. Dr. D.S. submitted an undated letter in support of the appeal. He stated that he runs a PTSD meeting group, and that the Veteran had been attending for the past four years. Dr. D.S. indicated that the Veteran had issues with anger, isolation, and depression, and had been experiencing issues relating to family, friends, and co-workers. He found that the Veteran reported having a problem with anger, and talked about "wearing a mask" of husband, father, co-worker, and friend, all while his inner turmoil is taking control. Dr. D.S. stated that the Veteran struggled with daily tasks and needs continuous assistance and treatment. The Board finds that the evidence is at least in relative equipoise as to whether the Veteran's psychiatric disorder manifested functional impairment equivalent to occupational and social impairment with reduced reliability and productivity to the extent that a 50 percent rating may be assigned from July 21, 2014. See 38 C.F.R. § 4.130. The Board is aware that the Veteran denied having significant psychiatric symptoms to his clinicians at the Toledo Clinic, which weighs against assigning a 50 percent rating. Nevertheless, considering the credible opinions submitted by his co-workers, who have some degree of medical knowledge, and the opinion of Dr. D.S., the Board will resolve reasonable doubt in the Veteran's favor and assign a 50 percent rating from July 21, 2014, to September 9, 2015. The Board has considered whether a 70 percent rating may be applied prior to September 10, 2015. However, the the record does not support a finding of functional impairment equivalent to occupational and social impairment with deficiencies in most areas during that period. 38 C.F.R. § 4.7. Specifically, the Board again notes that the Veteran denied having significant psychiatric symptoms to the clinicians at Toledo Clinic during that period. His judgment and thinking were routinely found to be normal, and he reported maintaining successful relationships with his wife, children, and parents. This does not suggest functional impairment to the extent that a higher rating may be assigned. From September 10, 2015, the Veteran has received a 70 percent rating, except when receiving a temporary 100 percent evaluation due to in-patient psychiatric hospitalization. 38 C.F.R. § 4.29. The record does not reflect that the Veteran was totally occupationally and socially impaired due to his PTSD at any time during the rating period to the extent that a non-temporary 100 percent rating is warranted. 38 C.F.R. § 4.130. For example, the Veteran has maintained relationships with his wife, children, and parents during the rating period, including acting as a caregiver for his young children. These interactions and relationship, albeit limited, belie the notion of total social impairment. In January 2017, the Veteran stated that a friend was helping him to cut back on alcohol. See CAPRI, April 2018 (Psychiatry Note p.145). The Veteran's thinking has been consistently found within normal limits during the rating period. See C&P Exam, November 2015; C&P Exam, November 2016; CAPRI, April 2018 (Psychiatry Note p.14). This does not suggest total occupational and social impairment to the extent that a total rating is appropriate. The Board is aware that a TDIU has been assigned based on the Veteran's PTSD symptoms. The criteria for TDIU are based on different standards than a 100 percent schedular rating for PTSD. Compare 38 C.F.R. § 4.16 with 38 C.F.R. § 4.130. Although the Veteran's PTSD may render him unable to secure and follow substantially gainful employment, it does not necessarily equate to a manifestation of total occupational and social impairment to the extent that a 100 percent schedular rating may be assigned under the General Rating Formula. In sum, the Board finds that the evidence is at least in equipoise as to whether a 50 percent rating may be assigned for the Veteran's PTSD from July 21, 2014, through September 9, 2015. However, no other higher staged ratings are for application during the appeal period. See 38 U.S.C. § 5107(a). 3. Entitlement to an earlier effective date of April 12, 2016, and no earlier, for the grant of a TDIU, is granted. As discussed in the introduction, an earlier effective date of TDIU remains within the Board's jurisdiction as part and parcel of the underlying claim for an increased rating for PTSD. See Rice, 22 Vet. App. at 449. The AOJ determined that an effective date of October 31, 2016, was warranted for TDIU because the Veteran's formal application was received on that date. See Rating Decision Narrative, April 2017. It is well-established that a formal application is not required to raise TDIU or apply such a rating in the course of an increased rating claim. The Board will herein consider an earlier effective date. The Board finds that an earlier effective date of April 12, 2016, and no earlier, may be assigned. Although the Veteran quit actively working and took medical leave in September 2015, his former employer endorsed that he remained on the payroll until April 11, 2016, and had an income that was well in excess of the poverty threshold. See VA Form 21-4192, January 2017. The Veteran met the schedular criteria for a TDIU at that time, based on a single disability rated as 60 percent or higher. See 38 C.F.R. § 4.16; Rating Decision Codesheet, April 2018. Accordingly, the Board will assign an effective date of April 12, 2016, the day after his last day of employment, for the grant of a TDIU. 38 C.F.R. § 3.400. (REMAND NEXT PAGE) REASONS FOR REMAND 4. Entitlement to service connection for a lumbar spine condition is remanded. 5. Entitlement to service connection for a right knee condition is remanded 6. Entitlement to service connection for a left hip condition is remanded. 7. Entitlement to service connection for a right hip condition is remanded. The Board finds that the above matters must be remanded for addendum VA examinations and medical opinions. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran underwent VA examinations for his lumbar strain, right knee, and bilateral hips in January 2015. The examiner found that the Veteran did not have a current disability of the hips or knees. As to the lumbar spine, the examiner found that "the Veteran has x-rays consistent with sacroiliac spondyloarthropathy. This is unrelated to any strains in service. He has no current lumbar strain." The above findings are not sufficient for decisional purposes and further remand is necessary. The examiner did not provide a rationale for why the Veteran's current spondyloarthropathy is unrelated to the lumbar strains during military training exercises, which are documented by service treatment records. Although the Veteran did not manifest symptoms of the hips or knee at the time of the VA examination, the record suggests reports of knee and hip pain and other symptoms during service and thereafter. See CAPRI, April 2018 (Primary Care Note p.8, listing a history of arthritis of the hips and knees in December 2017); Hearing Transcript, August 2021. Given the foregoing, the Board finds that addendum examinations and medical opinions are necessary. An October 2021 statement from Dr. T.T. seemingly relates the Veteran's low back pain to injuries sustained during his active service. However, the statement is overly vague. It also fails to clearly identify an underlying diagnosed disability of or describe functional impairment of the low back. The matters are REMANDED for the following actions: 1. Secure for the record copies of complete updated clinical records of all VA and non-VA treatment the Veteran has received for the disorders on appeal. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his current lumbar disorders. Any appropriate diagnostic testing should be conducted. The examiner is asked to review the claims file and to opine on the following: (a) Is it at least as likely as not that any lumbar spine condition, to include pain causing functional loss, began during or is causally related to military service? (b) If arthritis of the spine is diagnosed, is it at least as likely as not that it occurred as a chronic disease entity within a year of the Veteran's active service? A complete rationale should be provided for all opinions. The examiner is asked to consider relevant lay and medical evidence, to specifically include: Service treatment records, including reports of back pain after slipping on ice during training in 2004 and complaints of back pain in post-deployment health questionnaire in March 2007 Letter from Dr. T.T. submitted in October 2021 The Veteran's hearing testimony in August 2021 Private medical records, including from Dr. C.S. and Dr. T.T., and from St. Luke's Hospital VA treatment records, showing reports of ongoing back pain and physical therapy The examiner is reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any current right knee disorders. Any appropriate diagnostic testing should be conducted. The examiner is asked to review the claims file and to opine on the following: (a) Is it at least as likely as not that any right knee condition, to include pain causing functional loss, began during or is causally related to military service? (b) If arthritis of the right knee is diagnosed, is it at least as likely as not that it occurred as a chronic disease entity within a year of active service? (c) If, and only if, a lumbar spine disorder is found to be service-connected, is it at least as likely as not that any right knee disorder is proximately due to or a result of a service-connected lumbar spine disorder? (d) If, and only if, a lumbar spine disorder is found to be service-connected, is it at least as likely as not that any right knee disorder underwent any incremental increase in disability, regardless of its permanence, due to a service-connected lumbar spine disorder? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Any "incremental increase in disability" need not be permanent. A complete rationale should be provided for all opinions. The examiner is asked to consider relevant lay and medical evidence, to specifically include: Service treatment records, including reports of knee symptoms in post-deployment health questionnaire in March 2007 VA treatment records, showing a history of arthritis of the knees The Veteran's hearing testimony in August 2021 The examiner is reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any current hip disorders. Any appropriate diagnostic testing should be conducted. The examiner is asked to review the claims file and to opine on the following: (a) Is it at least as likely as not that any hip condition, to include pain causing functional loss, began during or is causally related to military service? (b) If arthritis of the hips is diagnosed, is it at least as likely as not that it occurred as a chronic disease entity within a year of active service? (c) If, and only if, a lumbar spine disorder is found to be service-connected, is it at least as likely as not that any hip disorder is proximately due to or a result of a lumbar spine disorder? (d) If, and only if, a lumbar spine disorder is found to be service-connected, is it at least as likely as not that any right knee disorder underwent any incremental increase in disability, regardless of its permanence, due to a lumbar spine disorder? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Any "incremental increase in disability" need not be permanent. A complete rationale should be provided for all opinions. The examiner is asked to consider relevant lay and medical evidence, to specifically include: Service treatment records, including reports of hip symptoms in post-deployment health questionnaire in March 2007 The Veteran's hearing testimony in August 2021 VA treatment records, including radiographic imaging report finding hip symptoms suggestive of spondyloarthropathy in January 2015 The examiner is reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.