Citation Nr: 21070623 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-14 238 DATE: November 24, 2021 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) from January 16, 2015, is granted. REMANDED ISSUES Entitlement to a rating in excess of 50 percent for a right hip disability, post total hip replacement surgery, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the severity, frequency and duration of Veteran's PTSD symptoms more nearly approximate total occupational and social impairment from January 16, 2015. CONCLUSION OF LAW The criteria for entitlement to a rating of 100 percent for service-connected PTSD from January 16, 2015, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from March 1998 to June 2004 and from June 2007 to April 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a June 2020 video hearing, a transcript of which has been attached to the record. The Board previously remanded these issues to the AOJ for further development in March 2021. With respect to the PTSD claim, the AOJ has identified the date of claim as July 2015. However, the record reflects that the Veteran filed a claim for an increased rating on January 16, 2015, and a May 2015 AOJ rating decision awarded a 70 percent rating for PTSD effective January 16, 2015. In July 2015, the Veteran requested reconsideration of the January 2015 rating decision. In support of his request, he submitted a highly relevant July 2015 examination report. This constituted new and material evidence pursuant to 38 C.F.R. § 3.156(b) requiring a readjudication of the January 2015 decision. An October 2015 rating decision denied a rating in excess of 70 percent for PTSD, and the Veteran perfected an appeal to this decision. By operation of 38 C.F.R. § 3.156(b), the date of claim for the PTSD claim, as well as TDIU claim, is January 16, 2015. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 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. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Board must interpret various examination reports in light of the entire medical history, reconciling any contrary findings into a consistent picture. 38 C.F.R. § 4.2 1. Entitlement to a rating in excess of 70 percent for PTSD prior to May 27, 2021 The Veteran was initially granted service connection for PTSD from the date of his claim, January 16, 2015, with an assigned rating of 70 percent. He appealed, seeking a disability evaluation of 100 percent. As noted above, the Board remanded this issue in March 2021 in order to afford the Veteran a contemporaneous psychological evaluation. The AOJ subsequently issued a June 2021 rating decision increasing the Veteran's PTSD rating to 100 percent from May 27, 2021, the date of the VA examination. As this is less than a complete grant of benefits, the matter is still in controversy and the Board will review the effective date of the 100 percent rating. See AB v. Brown, 6 Vet. App. 35 (1993). PTSD is rated using the General Rating Formula for Mental Disorders. Under this formula, 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. 38 C.F.R. § 4.130, DC 9411. A 100 percent disability 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; memory loss for names of close relatives, own occupation, or own name. Id. Evaluation under 38 C.F.R. § 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). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play 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. 38 C.F.R. § 4.21; 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. Mauerhan, 16 Vet. App. at 443. Service treatment records indicate the Veteran was evaluated as not fit for retention with the Army following a September 2012 psychological evaluation. The evaluator noted the Veteran's acquired psychiatric disorder was likely to improve with continued therapy and medical management but concluded, "given the chronicity of suicidal ideation and depression symptoms it is not likely that [he] will be able to return to duty in his primary military occupation because of risk of decompensation." March 2014 private treatment records indicate the Veteran checked himself in to a mental health facility after expressing suicidal ideation following left knee surgery and his wife's discovery of an extramarital affair. He checked himself out voluntarily, with the treating clinician noting symptoms of suicidal ideation without plan as well as poor insight, judgment, coping skills and impulse control. However, the clinician noted the Veteran was "able to perform all the activities of daily living." The Veteran was afforded a VA psychological examination in April 2015. The examiner noted he lived with his wife, kept up with his 11-year-old son in Canada, two siblings, and Facebook friends. The Veteran reported he had not worked since his separation from service, quit online school due to an inability to focus, and was hospitalized in 2014 following a suicide attempt. The clinician noted the Veteran's functioning had declined since his 2014 inpatient care and that he was unable to focus, as well as more irritable and reclusive. The examiner concluded 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 depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, and an inability to establish and maintain effective relationships. It was noted that the Veteran was not capable of managing his financial affairs. In July 2015 correspondence, the Veteran's treating social worker noted the Veteran's history of social and occupational impairment due to extreme symptoms of anxiety with panic attacks and problems with judgment, thinking, mood, becoming disoriented to time or place, and generally having problems with the activities of daily living. She noted he experienced obsessive, recurrent, intrusive thoughts of constant exposure to war which led him to explode verbally, and that night terrors cause him to fight and scratch himself in his sleep. The social worker noted that while the Veteran's past auditory hallucinations were currently controlled by medication, he still required daily assistance with reminders to take his medication, attend appointments, and required occasional assistance with personal hygiene and dress. She stated that the Veteran relied on his wife "98 percent of the time" and was likely to continue to have difficulty with the activities of daily living in the future. At the June 2020 Board hearing, the Veteran reported symptoms of hypervigilance, visual hallucinations, paranoia, night terrors, anxiety, and memory lapses. His wife indicated that they rarely go out because he gets anxious and stiff in crowds and related that he no longer drives after almost causing an accident when he mistook a cement bag on the median for a roadside bomb. The Veteran stated that he woke up one night with his hand around his wife's throat because he "thought she was the enemy" while asleep. He reported ceasing VA treatment and experiencing "lots of forgetful times," including forgetting what day it is, to lock the doors or to turn off the stove when cooking. He also stated that he tried to purchase a firearm in Tennessee but was denied based on an adverse mental competence determination. The Veteran was afforded an additional VA psychological examination in May 2021, during which he echoed the description of symptoms provided at the June 2020 Board hearing and emphasized his dependence on his wife. The examiner noted the Veteran was appropriate in appearance, with adequate grooming and hygiene. He was fully oriented, with an irritable mood, anxious and dull effect, and linear thoughts and speech. The Veteran evidenced no symptoms of psychosis and reported passive suicidal ideation without plan or intent. The examiner concluded that the Veteran manifested total occupational and social impairment due to symptoms of depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, impairment of short and long term memory, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, impaired impulse control such as unprovoked irritability with periods of violence, grossly inappropriate behavior, intermittent ability to perform the activities of daily living, including maintenance of minimal personal hygiene. As noted above, the Veteran was granted a 100 percent rating for PTSD from May 27, 2021. The Board observes that during the Veteran's initial April 2015 VA examination, he was evaluated as capable of performing most of the activities of daily living and reported maintaining social relationships with his family and some friends. The examiner noted he manifested occupational and social impairment with serious deficiencies in most areas, such as quitting school due to an inability to focus and not working since his separation from service. The examiner also indicated that the Veteran was incapable of managing his own finances. This is followed by the July 2015 report from the Veteran's treating social worker noting that the Veteran was dependent on his wife for 98 percent of his daily needs, intermittently including the ability to dress and groom himself. This assessment was corroborated by the June 2020 hearing testimony provided by the Veteran and his wife, which noted the Veteran's deteriorating memory and recounted several instances in which the safety of the Veteran and/or his wife were threatened as a result of his PTSD symptoms. The Board acknowledges that social worker correspondence and hearing testimony do not indicate that the Veteran has experienced all of the symptoms associated with a 100 percent rating for PTSD for the entire period on appeal, and the April 2015 report appears to demonstrate better functioning than the July 2015 report. The symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are intended serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan 16 Vet. App. at 433. The Board finds the hearing testimony and lay statements of the Veteran and his wife regarding the both the symptoms of his service-connected disabilities credible and highly probative. Similarly, the Board finds the VA and private assessments of the Veteran's psychological symptoms highly probative. The AOJ has rated the Veteran as incompetent since February 2016. After reconciling any contrary findings into a consistent picture, the evidence appears to be at least evenly balanced as to whether the severity, frequency, and duration of Veteran's PTSD symptoms has more nearly approximated total occupational and social impairment for the entire appeal period. As such, by resolving reasonable doubt in the Veteran's favor, his claim for an increased rating for PTSD to 100 percent is granted from January 16, 2015. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits."). REMAND Entitlement to a rating in excess of 50 percent from September 1, 2019, for a right hip disability Procedurally, the Veteran filed a claim for an increased rating for service-connected right hip strain in January 2017. A March 2017 AOJ rating decision denied an increased rating. The Veteran submitted a relevant May 2017 examination report, and the AOJ issued a June 2017 rating decision denying an increased rating. By letter dated June 19, 2017, the Veteran was notified of this denial and his appellate rights. However, he did not submit a notice of disagreement, or new and material evidence, within one year of the June 19, 2017 decision. On August 3, 2018, the Veteran filed a claim for an increased rating for right hip disability. In so doing, he submitted medical evidence reflecting that he underwent total right hip replacement surgery on July 24, 2018. The Board previously remanded the issues of entitlement to a rating in excess of 10 percent for a "right hip strain" and entitlement to a temporary total evaluation based on convalescence after July 2018 right hip replacement surgery. The objective of the remand, besides providing the Veteran with a contemporaneous hip evaluation, was to determine whether the cause of the Veteran's right hip surgery first manifested in or was otherwise due to his active service. After a subsequent VA examination, the AOJ issued a June 2021 rating decision determining reclassifying the Veteran's service-connected right hip disability as "right total hip arthoplasty associated with a right hip strain." The AOJ granted a temporary 100 percent evaluation for the 13 months following the surgery until September 1, 2019. As this is the maximum allowable rating for one year following hip surgery under 38 C.F.R. § 4.71a, DC 5054, the issue is moot and therefore no longer before the Board. Following the end of the temporary total rating, the AOJ assigned a 50 percent rating for moderately severe residuals of weakness, pain, or limitation of motion. As this is less than the maximum available rating following a temporary total rating for hip replacement surgery, the Board will review the AOJ decision. See AB, 6 Vet. App. at 35. Hip impairment post-replacement surgery is evaluated under DC 5054. After the 13-month period at 100 percent ends, a minimum of 30 percent is assigned. A 50 percent rating is warranted for moderately severe residuals of weakness, pain, or limitation of motion. A 70 percent rating is warranted for markedly severe residual weakness, pain, or limitation of motion following implantation. A maximum of 90 percent is warranted for painful motion or weakness such as to require the use of crutches following the expiration of the temporary total rating. 38 C.F.R. § 4.71a. Words such as "moderate" and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. According to Merriam-Webster, "moderate" means "tending toward the mean or average amount or dimension," while "marked" means "having a distinctive or emphasized character." See www.merriam-webster.com/dictionary/moderate, www.merriam-webster.com/dictionary/marked. The Veteran was first diagnosed with severe degeneration of the bilateral hips in December 2016. According to a January 2017 VA examination, he manifested 120 degrees flexion, 25 degrees extension, 45 degrees abduction and 25 degrees adduction in the right hip. The Veteran reported flareups of pain after prolonged walking and indicated he constantly used a cane to ambulate. As noted above, he underwent total right hip replacement surgery on July 24, 2018, and filed a claim for increased rating on August 3, 2018. The Veteran was afforded an additional VA hip examination in October 2018. The examiner noted moderately severe residuals of total hip replacement surgery, including difficulty climbing stairs, standing or walking for long periods of time, increased pain, stiffness and decreased range of motion during flareups. The examiner also noted he required the constant use of a cane. In May 2019, the Veteran reported that since his surgery he has experienced difficulty getting in and out of the car and required constant use of a cane. His temporary 100 percent rating ended September 1, 2019. In May 2019, the Veteran described having the hips of an 80-year old man and that he experienced difficulty getting in and out of a car, and he still used a cane to walk around in everyday life. Notably, VA clinic records in March 2019 include the Veteran request for a referral for left knee replacement due instability. At a hearing in June 2020, the Veteran described stiffness with limitations in opening his hips. He referred to his left hip and popping in and out of joint. He used a cane to keep his hips steady. His wife described the Veteran has having walking difficulty with balance issues. He had a few falls, but not as many as prior to hip surgery. He had a lot of hip pain, particularly with weather changes. The Veteran was afforded an additional VA hip examination in June 2021, during which the examiner noted the Veteran could not sit for over 10 minutes in the same position or walk more than 200 meters. The Veteran stated he constantly used a cane to walk and reported flareups of throbbing pain occurring approximately twice per month and lasting around six hours, brought on by prolonged sitting or walking. The Veteran exhibited flexion of 110 degrees in the right hip and 50 in the left, with pain on external rotation. The examiner noted the Veteran's left hip adduction prevented him from crossing his legs, while his right hip adduction did not. However, there was limitation in active adduction which prevented the Veteran from crossing his legs bilaterally. The examiner concluded the Veteran manifested moderately severe residuals of weakness, pain or limitation of motion post-hip surgery. After review of the relevant medical and lay evidence of record, the Board has insufficient information to decide the claim. As noted above, a higher rating is based on markedly severe residual weakness, pain, or limitation of motion following implantation. Unfortunately, there is no clinic evaluation of muscle strength following the right hip surgery. As such, the case must be remanded for adequate examination. 2. Entitlement to a TDIU The Board has awarded a 100 percent schedular rating for PTSD for the entire appeal period. The Board defers addressing this issue pending the AOJ's determinations of entitlement to special monthly compensation as a result of this decision. Accordingly, these matters are REMANDED for the following: 1. Associate updated VA clinic records as well as complete records from the Veteran's choice chiropractor at Ft. Campbell. See VA clinic record dated March 16, 2021. 2. Afford the Veteran additional VA examination of the right hip which clinically assesses the severity of weakness, pain, and/or limitation of motion of the right hip, including muscle strength testing. 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 Veteran should describe and/or demonstrate the extent of motion loss during flares or repetitive use and the examiner should provide the extent of motion loss described in terms of degrees. 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.