Citation Nr: 21073373 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 15-42 504A DATE: December 8, 2021 ISSUE Entitlement to a rating in excess of 50 percent, prior to February 27, 2021, and in excess of 70 percent thereafter, for posttraumatic stress disorder (PTSD). ORDER Entitlement to a 70 percent rating, but no higher, prior to February 27, 2021, for PTSD with panic disorder, is granted. Entitlement to a rating in excess of 70 percent, from February 27, 2021, for PTSD with panic disorder, is denied. REMANDED Entitlement to service connection for a left-hand disability (claimed as left-hand pain), to include as secondary to a service-connected disability is remanded. FINDINGS OF FACT 1. Prior to February 27, 2021, the Veteran's PTSD with panic disorder was manifested by occupational and social impairment with deficiencies in most areas. 2. From February 27, 2021, the Veteran's PTSD with panic disorder was not manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to February 27, 2011, the criteria for a 70 percent rating, but no higher, for PTSD with panic disorder were met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. From February 27, 2011, the criteria for a rating in excess of 70 percent rating, for PTSD with panic disorder have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.21, 4.125, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1989 to July 1997. This appeal to the Board of Veterans' Appeals (Board) stems from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the appeal for further development. In a March 2021 rating decision, the RO granted a 70 percent rating for PTSD with panic disorder, effective February 27, 2021. As this does not represent a total grant of the benefits sought, the matter remains on appeal. Increased Ratings Entitlement to a rating in excess of 50 percent, prior to February 27, 2021, and in excess of 70 percent thereafter, for PTSD with panic disorder I. General Rating Principles Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. While the regulations require review of the recorded history of a disability, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 is assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. II. Rating Criteria In evaluating psychiatric disorders, VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to the DSM. See 38 C.F.R. § 4.125(a). Effective August 4, 2014, VA amended the portion of its Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the Fourth Edition of the DSM (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The Secretary, VA, determined DSM-5 applies to claims certified to the Board on and after August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14308 (March 19, 2015). Here, the RO first certified the Veteran's increased rating appeal to the Board in March 2016; thus, this claim is governed by the DSM-5. Notably, the DSM-5 does not employ Global Assessment of Functioning (GAF) scores to identify levels of disability. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). 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. Fenderson, 12 Vet. App. 119. The Veteran's PTSD with panic disorder is rated pursuant to DC 9411. 38 C.F.R. § 4.130, DC 9411. Under 38 C.F.R. § 4.130, DC 9411, a 50 percent rating is warranted where the disorder is manifested by 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 where the disorder is manifested by 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted where the disorder is manifested by 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. 38 C.F.R. § 4.130; DC 9411; Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). The symptoms listed in DC 9411 are not intended to constitute an exhaustive list, but rather 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). III. Analysis The Veteran contends that he is entitled to a 100 rating for his service-connected PTSD because he has not worked since 2011 and exhibits symptoms of spatial impairment, illogical speech and deficiencies in mood, concentration and thinking. See June 2015 Notice of Disagreement (NOD). For the reasons explained below, the Board finds that a 70 percent rating, but no higher, is warranted, prior to February 27, 2011. Initially, the Board notes that the Veteran has diagnoses of PTSD and alcohol use disorder. See October 2014 and February 2021 VA examination reports. The evidence of record does not sufficiently distinguish the symptoms of both diagnoses from each other as many symptoms overlap and the February 2021 examiner noted that he could not differentiate between the symptoms of each disorder. Thus, the Board's instant discussion attributes all of the Veteran's mental health symptoms to his service-connected PTSD with panic disorder. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board finds that a 70 percent rating, but no higher, is warranted prior to February 27, 2021, based on occupational and social impairment, with deficiencies in most areas, due to such symptoms as irritable behavior and angry outbursts (with little or no provocation); reckless or self-destructive behavior; hypervigilance; exaggerated startle response; suspiciousness; difficulty in adapting to stressful circumstances (including work or a work-like setting); difficulty establishing and maintaining effective relationships; and inability to establish and maintain effective relationships. In a September 2014 correspondence, the Veteran reported that due to his PTSD, he has difficulty caring for his 5-year-old. He reported that he does not like going in public because he experiences panic attacks. He reported that he cried everyday at his last job and had to leave due to his PTSD and other symptoms. A similar buddy statement from his daughter indicated that she has witnessed the Veteran avoid driving anywhere because he is afraid of getting hit by another vehicle. She retold of one time where they had to go to hospital after her father picked her up from the airport because he was feeling horrible. The Veteran was afforded a VA examination in October 2014. The Veteran endorsed problems with concentration; sleep disturbance; depressed mood; anxiety; chronic sleep impairment; flattened affect; impaired abstract thinking; disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships; and inability to establish and maintain effective relationships. The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency. In his June 2015 NOD, the Veteran reported experiencing social and occupational impairments corresponding with a 70 percent rating including spatial impairment, speech intermittently illogical, deficiencies in work, school, and family relations, thinking, mood, concentration, interpretation, and vision. He also reported the word "suicide" scares him; drinking on impulse without control; impaired impulse control; dizziness and irritability when dealing with others; continuous panic; avoidance of social and work settings. The Veteran reported that the October 2014 VA examination was inadequate for adjudication purpose because it lasted only eight minutes. Most recently, the Veteran was afforded a VA examination in February 2021, at which time he reported ongoing symptoms of PTSD, including a "feeling like I am going to lose my sense of direction, my spatial judgement, a lot of dizziness, nausea in the morning, gagging, and vomiting". He reported that drinking helps resolve these symptoms and he denied a history of self-injurious behavior. The examiner irritable behavior and angry outbursts (with little or no provocation); reckless or self-destructive behavior; hypervigilance; exaggerated startle response; problems with concentration; sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep); depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; 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 work like setting. The examiner observed the Veteran was reasonably well groomed and appeared to have adequate hygiene; attitude quite distant and detached overall; posture unremarkable; speech was coherent; alertness was normal; he was oriented in all spheres; rapport was relatively established; attention/concentration was unimpaired; knowledge was average; recent/remote memory was intact; abstraction was intact; judgement was intact; insight was fair; mood "not feeling too bad"; affect was restricted; mood was congruent/appropriate; process was vague, diffuse, and mildly tangential behavior; and thought content was unremarkable. The Veteran denied suicidal thoughts, paranoia, hallucinations, and delusions. Although there is evidence that the Veteran was treated by a private provider, Dr. N.R., there is evidence that the RO unsuccessfully attempted to obtain those outstanding records. Based on the foregoing, the Board finds that, prior to February 27, 2021, the Veteran's PTSD symptoms met the criteria for a 70 percent rating, but no higher, Given the medical and lay evidence of record, the Veteran's psychiatric symptoms including his irritable behavior and angry outbursts (with little or no provocation); reckless or self-destructive behavior; hypervigilance; exaggerated startle response; suspiciousness; difficulty in adapting to stressful circumstances (including work or a work-like setting); difficulty establishing and maintaining effective relationships; and inability to establish and maintain effective relationships have resulted in occupational and social impairment with deficiencies in most areas supporting a 70 percent rating. The Board credits the February 2021 VA examination report which appears to have provided a thorough analysis of the Veteran's lay statements and assessment of the current severity of his PTSD. The February 2021 examiner found that the Veteran's symptoms rose to the level for a 70 percent rating. The February 2021 VA examination report appears to corroborate the Veteran's previous lay and buddy statements regarding his daily impairments due to his PTSD. The Board credits the Veteran's and his daughter's lay statements regarding his limitations. The Board does not assign probative value to the October 2014 VA examination report which the Veteran says does not fully access his symptoms. The October 2014 VA examination report which found that the Veteran's symptoms rose to the level commensurate with a 30 percent rating does not appear to consider relevant lay evidence to the contrary. That being said, the Board finds that the Veteran's symptoms, do not approximate a rating of 100 percent as to result in total occupational and social impairment at any time throughout the appeal period. In this regard, while there is some indication of self-reported spatial disorientation and speech intermittently illogical, it is not of the severity, frequency, or duration contemplated by a total rating. Further, there is no evidence in the record of gross impairment in thought processes or communication; persistent danger of hurting self or others; grossly inappropriate behavior; persistent delusions or hallucinations; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for own occupation or own name (see December 2012 through September 2020 VA treatment records and February 2021 VA examination report, which consistently note appropriate appearance and hygiene, coherent speech, intact insight and judgment, normal thought process/content, normal perception, and normal orientation and the Veteran denying delusions, hallucinations, or suicidal ideation), or any other symptoms of similar severity, frequency or duration. The Board acknowledges that the symptoms noted in DC 9411are not exhaustive, but merely demonstrative of the type and severity of symptoms necessary to approximate the 100 percent evaluation. However, in the present case, the Veteran has not shown any symptomatology reflective of total social and occupational impairment at any time during the appeal period, and his 70 percent rating is consistent with his PTSD with panic mood symptomatology. As such, a rating in excess of 70 percent is not warranted. 38 C.F.R. § 4.7. REASONS FOR REMAND 2. Entitlement to service connection for a left-hand disability (claimed as left-hand pain), to include as secondary to a service-connected disability is remanded. Pursuant to the Board's November 2018 remand directives, the Veteran was afforded a VA examination in April 2021. The Board asked the examiner, in relevant part, to identify all current chronic hand and feet disabilities that have existed since July 2011. And in doing so, the examiner should indicate if there is any pain that caused functional impairment. The examiner found no current diagnoses for a left-hand musculoskeletal disability but failed to address whether the Veteran's reported and ongoing left-hand pain caused any functional loss, as specifically requested by the Board. Thus, for this reason, another VA examination and medical opinion from a different examiner is needed on remand to ensure substantial compliance with the Board's November 2018 remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (noting that pain resulting in functional impairment could constitute a current disability, even if there is no diagnosis connecting the pain with a current underlying condition). Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination with a different examiner than the February 2021 examiner to determine the nature and etiology of any left-hand musculoskeletal disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. The examiner should address the following: (a) Diagnose any left- hand musculoskeletal disability present since July 2011. If no diagnosis is rendered and only pain is identified, the examiner must indicate whether the Veteran's reported bilateral knee pain causes any functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (noting that pain resulting in functional impairment could constitute a current disability, even if there is no diagnosis connecting the pain with a current underlying condition). (b) If the Veteran suffers from a left hand disability, opine whether it is at least likely as not (a 50 percent or greater probability) that a left hand disability or functional impairment is caused or aggravated by any of his Veteran's service-connected disabilities. (c) If aggravation is found, provide the baseline manifestations and any increased manifestations due to the service-connected disabilities. A complete rationale, with citation to appropriate medical principles, is requested. If the examiner is unable to provide a medical opinion, then he or she should provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. L. Baskerveille Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.