Citation Nr: 21070381 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-26 301 DATE: November 23, 2021 ORDER Entitlement to a 70 percent rating, but not higher, for posttraumatic stress disorder (PTSD), effective August 31, 2012, but not earlier, is granted. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder is denied. REMANDED Entitlement to an increased rating for chronic adductor strain of the left thigh with fracture of left pubic ramus is remanded. FINDING OF FACT 1. Effective August 31, 2012, resolving reasonable doubt in favor of the Veteran, a psychiatric disability resulted in occupational and social impairment with deficiencies in most areas, but not total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 70 percent rating, but not higher, for posttraumatic stress disorder (PTSD), effective August 31, 2012, but not earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a rating in excess of 70 percent for posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1995 to August 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2013 and September 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In February 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In September 2019, the Board remanded this claim to the Agency of Original Jurisdiction for additional action. In a February 2021 rating decision, the rating for PTSD with depressive symptoms and alcohol use disorder was increased to 70 percent, effective January 8, 2021. A claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the Veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to a higher rating for PTSD remains on appeal. 1. Entitlement to a 70 percent rating, but not higher, for posttraumatic stress disorder (PTSD), effective August 31, 2012, but not earlier. 2. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. In order to rate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). This review is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The service-connected posttraumatic stress disorder (PTSD) with depressive symptoms and alcohol use disorder has been rated under the provisions of Diagnostic Code 9411. Under the provisions of Diagnostic Code 9411, a 30 percent rating is warranted 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 warranted 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 warranted for occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. The symptoms listed in VA's general rating formula for 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 (2002). Considerations in rating a mental disorder include 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 must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran's posttraumatic stress disorder (PTSD) with depressive symptoms and alcohol use disorder is currently assigned a 50 percent rating prior to January 8, 2021, and a 70 percent rating as of January 8, 2021. This claim for an increased rating stems from the Veteran's initial grant of service connection for a psychiatric disability. The Veteran contends that the ratings assigned for a service-connected psychiatric disorder do not accurately compensate the severity of the psychiatric disability, and that higher ratings are warranted. After review of the relevant medical and lay evidence of record, resolving reasonable doubt in favor of the Veteran, the Board finds that, effective August 31, 2012, the psychiatric disability was productive of occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking, or mood. Therefore, the Board finds that, effective August 31, 2012, but not earlier, the psychiatric disability warranted a 70 percent rating. Therefore, the claim for an increased rating of 70 percent for PTSD, effective August 31, 2012, is granted. The Board finds that at no point during the course of the appeal has the psychiatric disability been productive of total occupational and social impairment. Therefore, any claim for a rating in excess of 70 percent for a psychiatric disability must be denied. In a private October 2012 neuropsychiatric evaluation, the Veteran was noted as having ongoing problems with depression, anxiety, and sleep impairment. The Veteran also exhibited loss of appetite, feelings of helplessness, feelings of worthlessness, difficulty concentrating, inattentiveness, irritability, and suicidal ideation. At the time of this examination, the Veteran lived with her fiancé, and reported getting along adequately with the fiancé. She also had relationships with two daughters, a sister, and some close friends. In a private January 2014 examination, the Veteran's psychiatric condition was found to result in occupational and social impairment with reduced reliability and productivity. Symptomatically, the Veteran's psychiatric condition was found to result in irritability, difficulty concentrating, hypervigilance, exaggerated startle response, depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short and long term memory (for example, retention of only highly learned material, while forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and impaired impulse control. At a July 2014 VA examination, the Veteran's psychiatric condition was found to result in occupational and social impairment with reduced reliability and productivity. Symptomatically, the Veteran's psychiatric condition was found to result in irritability, difficulty concentrating, exaggerated startle response, depressed mood, anxiety, chronic sleep impairment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and feelings of guilt or worthlessness. The Veteran reported having suicidal thoughts roughly one month prior. A June 2016 mental health note described the Veteran as having suicidal thoughts within the last two months, chronic sleep impairment, and difficulty with concentration. The Veteran was engaged to be married. The Veteran described her relationship with her parents and sister as being good. Affect was euthymic. Speech and thought content were normal. Insight, judgment, and impulse control were noted as being good. In support of the claim, in addition to several self-written statements and written statements from family members, the Veteran testified before the undersigned Veterans Law Judge in February 2019. During that hearing, the Veteran detailed her psychiatric condition and the effect it has had on her life, including irritability, hypervigilance, depression, anxiety, outbursts, difficulty maintaining relationships, intimacy issues, sleep impairment, nightmares, and problems with concentration. The Veteran acknowledged having some close friends but usually just being home with her husband. A February 2020 mental health note described the Veteran as having a congruent affect and a depressed, anxious, overwhelmed mood. The Veteran reported having suicidal ideation one week prior to the examination. At a January 2021 VA examination, the Veteran's psychiatric condition was found to result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran stated that she was married and had a daughter from a previous relationship. The Veteran also had an 11 year old daughter with her current husband. The Veteran described her parents and sister as supportive, but they all lived in a different state. Symptomatically, the Veteran's psychiatric condition was found to result in exaggerated startle response, problems with concentration, depressed mood, anxiety, chronic sleep impairment, impaired judgment, impaired abstract thinking, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. After a thorough review of the claims file and resolving all reasonable doubt in favor of the Veteran, effective August 31, 2012, the date the Veteran was first awarded service connection for a psychiatric disability, when considering the overall disability picture, the Board finds that the evidence of record shows that the Veteran's psychiatric disability was more nearly approximated by the criteria for a 70 percent rating under the Diagnostic Code 9411. The Board notes that suicidal ideation alone, that is, a Veteran's thoughts of her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas, and thus may be sufficient to warrant a 70 percent rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board finds that the Veteran's psychiatric condition did not meet, or more nearly approximate, the criteria for a 100 percent as total occupation and social impairment, as is required for the next higher rating of 100 percent, have not been demonstrated. The Board finds that total occupational and social impairment was not shown during the course of the appeal. There is significant evidence of maintained familial relationships, which precludes a finding of total social impairment. The record indicates that the Veteran had a continued relationship with her husband, children, sister, parents, and at least one close friend. Therefore, as both total occupational impairment and social impairment are required for a 100 percent schedular rating, the Board finds that a 100 percent schedular rating was not warranted at any point during the course of this appeal as total social impairment has not been shown. The Board also notes that the Veteran has never displayed gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name, commensurate with a 100 percent rating. The Board acknowledges that the symptoms listed in VA's General Rating Formula for 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 (2002). The Board finds that the Veteran's overall disability picture was most nearly approximated by a 70 percent rating. In considering whether the Veteran was entitled to a higher rating, the Board has carefully considered the contentions and assertions that a psychiatric disability was of such severity so as to warrant increased schedular ratings. In making a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which are found to be persuasive or unpersuasive and provide the reasons for the rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is competent to report symptoms, such as anxiety, and depressed mood, because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the overall disability picture does not demonstrate symptoms that more nearly approximate a higher rating under the General Rating Formula for Mental Disorders. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 70 percent rating, but not higher, effective August 31, 2012, but not earlier, for a psychiatric disability are met. Therefore, the claim for an increased rating is granted to that extent only. The Board finds that the preponderance of the evidence is against the assignment of any higher rating. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an increased rating for chronic adductor strain of the left thigh with fracture of left pubic ramus is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to an increased rating for chronic adductor strain of the left thigh with fracture of left pubic ramus. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In September 2019, the Board remanded this claim for a VA examination. The Veteran was provided a December 2020 VA examination. The examiner was unable to test the Veteran's range of motion because the Veteran was in too much pain to move the hip. As a result, the examiner did not provide range of motion estimates or range of motion estimates for active motion, passive motion, nonweight-bearing, weight-bearing, or after repeated use. VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59. It does not appear that the December 2020 examination conformed to the requirements. The VA examiner noted that there was evidence of pain on passive, weight-bearing, and nonweight-bearing range of motion, but did not report the range of motion at which pain began and did not delineate the range of motion for active motion, passive motion, weight-bearing, and nonweight-bearing. Direct observation of functional impairment is not a prerequisite to offering an opinion. Case law and VA guidelines anticipate that examiners will offer opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up or after repeated use. If the examiner cannot provide an opinion as to additional loss of range of motion without resorting to mere speculation, the examiner must make clear that the examiner has considered all procurable data, such as the information regarding frequency, duration, characteristics, severity, and functional loss related to such flare-ups elicited from the Veteran, but the examiner should specify that any member of the medical community at large could not provide such an opinion without resorting to speculation. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner could not find whether pain, weakness, fatigability or incoordination could significantly limit functional ability on repetition due to the inability to complete the examination because of the Veteran's pain. The examiner did not express additional limitation due to pain in terms of degrees of additional range of motion. The examiner should provide an opinion based on estimates derived from information from the Veteran regarding the severity, frequency, duration, characteristics, and functional loss. The Veteran should have been asked to describe the functional loss he experiences after repetition and from there, the examiner should have then estimated functional loss or explain why the examiner could not do so. Thus, the rationale the examiner provided regarding the additional range of motion loss due to the Veteran's limitations is inadequate, as it is unclear whether the examiner considered all procurable data, including information regarding frequency, duration, characteristics, severity, and functional loss related to repeated use elicited from the Veteran. Accordingly, the Board finds the December 2020 VA examination report to be incomplete for rating purposes as the examiner did not provide any range of motion estimates. Therefore, the Board finds that there was not substantial compliance with the September 2019 Board remand requests. As the examination performed during the course of the appeal does not conform to the requirements, remand is warranted so that the VA examiner may report whether range of motion measurements for active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated. The Board finds that additional examination is warranted to determine the current severity and manifestations of the service-connected left thigh disability. After all outstanding medical records are associated with the claims file, the Veteran should be scheduled for an examination to rate the claim for an increased rating for a left thigh disability. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran is notified that it is her responsibility to report for any scheduled examination and to cooperate in the development of this claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any relevant private treatment records identified by the Veteran. 3. Then, schedule the Veteran for a VA examination for a service-connected left thigh disability. The examiner must review the claims file, including this Remand, and should note that review in the report. All testing deemed necessary should be performed. A complete rationale for all opinions should be provided in the examination report. The examiner is asked to provide opinions regarding the nature and severity of the claimed service-connected left thigh disability, to include a current diagnosis. The examination must include range of motion testing expressed in degrees for active motion, passive motion, weight-bearing, and nonweight-bearing, for the left thigh. Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner is specifically asked to describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, incoordination, or on flare up. The examiner should express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the examiner is unable to report the degree of additional range of motion loss during repeated use or a flare-up, the examiner must explain why it is not feasible to provide such an opinion. The examiner should opine as to any resultant loss in range of motion that would occur during on repeated use or flare-ups or explain why it is not feasible to provide such an opinion. If the Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and functional loss related to flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. The examiner should provide the estimates requested based on available information. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.