Citation Nr: 21073698 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 17-16 954A DATE: December 10, 2021 ORDER An initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from prior to July 5, 2017, is denied. An initial 100 percent rating for PTSD from July 5, 2017, through June 5, 2018, is granted. An initial rating in excess of 70 percent for PTSD from June 6, 2018, is denied. REMANDED The claim for entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome (IBS), is remanded. FINDINGS OF FACT 1. Prior to July 5, 2017, the Veteran's PTSD most nearly approximated deficiencies in most areas of work, school, family relationships, thinking, judgment, and mood without total occupational and social impairment. 2. Giving the Veteran the benefit of the doubt, from July 5, 2017, through June 5, 2018, the Veteran's PTSD was manifested by symptomatology that most nearly approximated total occupational and social impairment. 3. From June 6, 2018, the Veteran's PTSD most nearly approximates deficiencies in most areas of work, school, family relationships, thinking, judgment, and mood without total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for PTSD prior to July 5, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. For the period from July 5, 2017, through June 5, 2018, the criteria for a 100 percent disability rating for PTSD are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for an initial rating in excess of 70 percent for PTSD from June 6, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1974 to May 1975 with subsequent service in the Amy National Guard of California and the Air National Guard of California. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2016 and May 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2019 when it was remanded for additional development. At that time, the issues before the Board included entitlement to service connection for a right shoulder disability, various residuals of a right ankle injury, and residuals of pilonidal cyst removal. A September 2021 rating decision awarded service connection for a right shoulder disability, a right ankle disability, and residuals of pilonidal cyst removal, all effective June 12, 2013. The awards of service connection represent a full grant of the benefits sought on appeal and the claims are no longer before the Board. The Board's April 2019 decision also remanded a claim for an effective date earlier than June 12, 2013 for the award of service connection for PTSD. In response to the Board's remand instructions, a statement of the case (SOC) was issued by the agency of original jurisdiction (AOJ) in September 2019 continuing the denial of an earlier effective date. The Veteran did not respond to the SOC with a substantive appeal and the Veteran has not otherwise indicated that she wishes to pursue the claim. VA has also not explicitly or implicitly waived the requirement for a substantive appeal with respect to the claim for an earlier effective date. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Therefore, the claim for an effective date earlier than June 12, 2013 for the award of service connection for PTSD is not currently before the Board. 1. Entitlement to an initial rating higher than 70 percent for PTSD. Service connection for PTSD was granted in the February 2016 rating decision on appeal. An initial 50 percent evaluation was assigned from May 16, 2014. A March 2017 rating decision assigned an earlier effective date for the award of service connection for PTSD from June 12, 2013 and granted a higher initial rating of 70 percent throughout the initial claims period. Thus, the Veteran's PTSD is rated as 70 percent disabling from June 12, 2013. The Veteran contends that a 100 percent disability evaluation is warranted for her PTSD as it results in total occupational and social impairment. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is currently rated under Diagnostic Code 9411 as 70 percent disabling, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the general rating formula, a 70 percent evaluation is warranted if the veteran exhibits: 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 actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A maximum 100 percent evaluation 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 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. The symptoms listed in the rating formula are examples, not an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding that "any suggestion that the Board was required... to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation"). However, "a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). "The regulation's plain language highlights its symptom-driven nature" and "symptomatology should be... the primary focus when deciding entitlement to a given disability rating." Id. As such, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment to the extent specified in the rating criteria, rather than solely on the examiner's assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126 (a). The Board finds that a total 100 percent rating is warranted for the Veteran's PTSD during the period from July 5, 2017 to June 5, 2018. During this period, the Veteran's PTSD was productive of symptoms that were of similar severity, frequency, and duration as those specifically associated with a 100 percent evaluation. Vazquez-Claudio, supra. The Board acknowledges that the medical evidence may not reflect that the Veteran experienced many of the symptoms associated with the 100 percent schedular rating, including obsessional rituals and abnormal speech. However, after review of the evidence, the Board finds that the severity and effect of the Veteran's PTSD on her social life and work situation more nearly approximated total occupational and social impairment, which is the level of impairment contemplated by a 100 percent rating. See Mauerhan, supra. Private and VA treatment records show that the Veteran became estranged from her daughter during this period, was not allowed to see her grandson, experienced increased suicidal ideation, and experienced an overall increase in the severity of her PTSD that most nearly approximated total occupational and social impairment. Specifically, on July 5, 2017, the Veteran was seen at the VA Medical Center (VAMC) with reports that her PTSD had been very symptomatic with increased anger, depression, stress, anxiety, and insomnia. She also reported that due to PTSD, she did not want to get out of bed. Two weeks later, on July 20, 2017, the Veteran was admitted for a one night involuntary psychiatric stay at the David Grant Medical Center (DGMC) following a wellness check by the authorities. The wellness check was prompted by a social media post from the Veteran that indicated some suicidal ideation. At DGMC, the Veteran stated that she had an argument with her daughter in early July which culminated in her daughter prohibiting the Veteran from seeing her grandson. The Veteran was released from inpatient status after one night, but VAMC records dated during this period document her feelings of hopelessness, suicidal ideation, tangential thoughts, and poor insight and judgment. A December 2017 disability benefits questionnaire (DBQ) submitted by the Veteran includes findings of gross impairment of thought processes, suicidal ideation, unprovoked irritability and verbal aggression, as well as other significant symptoms of PTSD including neglect to personal hygiene and appearance. November 2017 statements from the Veteran's cousin (and housemate) and a family friend also document the Veteran's inability to perform basic tasks, her constant and severe depression, and complete avoidance of all social activities and relationships. Together with the March 2018 opinion of a rehabilitation specialist finding that the Veteran was totally precluded from working due to PTSD, the Board finds that the lay and medical evidence during this period establishes that the Veteran experienced total social and occupational impairment due to PTSD. Therefore, a total 100 percent evaluation is warranted during the period from July 5, 2017 through June 5, 2018. During the periods prior to July 5, 2017 and beginning June 6, 2018, the Board finds that the Veteran's current 70 percent evaluation for PTSD is appropriate and a higher rating is not warranted. During these periods, the Veteran's PTSD manifests symptoms such as depression, anxiety, suspiciousness, panic attacks, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining relationships. The Veteran's thought processes and ability to communicate were intact and while she occasionally expressed some suicidal ideation, these thoughts were characterized by her treating providers at the VAMC as "passive," or "fleeting," with consistent denials of any actual intent or plan. For the period prior to July 5, 2017, VA examiners in July 2015 and March 2017 identified PTSD symptoms that were consistent with occupational and social impairment with reduced reliability and productivity, i.e., the criteria associated with a disability rating of 50 percent. For the period beginning June 6, 2018, a VA admission evaluation note of the same date notes that when the Veteran was admitted for medical complaints unrelated to her PTSD, she reported being at a car show with friends earlier in the day. The evidence for these periods does not show gross impairment to thought processes or communication, a persistent danger of hurting herself or others, or an inability to perform daily activities. Instead, while her PTSD was certainly productive of severe symptoms causing deficiencies in most areas, the symptoms were of similar severity, frequency, and duration as those contemplated by the current 70 percent rating. The Veteran's PTSD was also not productive of total occupational and social impairment during the periods prior to July 5, 2017 and beginning June 6, 2018. The medical and lay evidence clearly establishes that the Veteran was not capable of working during these periods due to PTSD and its symptoms. However, while her occupational impairment may have been total, the Board finds that her PTSD did not also result in total social impairment. The Veteran remained close with several members of her family during these periods; she lived with her first cousin and described his support as one of the major protective factors against any self-harm. Similarly, the Veteran saw her daughter and grandson regularly prior to July 5, 2017, and later in 2018 after they reconciled. VAMC records also document the Veteran's participation and enjoyment in a car club and car shows which she attended with various friends. After June 2018, the Veteran also looked forward to several trips planned in the future and was motivated to seek treatment for her sleep problems and low energy to enjoy time with her grandson. In short, while the Veteran experienced severe social impairment throughout the relevant claims period, she maintained relationships with some family and friends and did not manifest impairment that most nearly approximates total. In conclusion, the Veteran's PTSD warrants a 100 percent disability rating during the period from July 5, 2017, through June 5, 2018, based on the presence of total occupational and social impairment. During the periods prior to July 5, 2017 and beginning June 6, 2018, the current 70 percent evaluation is appropriate. The Veteran manifested significant symptoms associated with PTSD during these periods, but did not demonstrate any of the specific criteria contemplated by a total schedular rating or symptoms of similar severity, frequency, and duration. She also did not have total social impairment as she was able to maintain relationships with several friends and family members and continued to socialize with her car club. The Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher rating other than that granted above. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. REASONS FOR REMAND 2. Entitlement to service connection for a gastrointestinal disability, to include IBS. The Board finds that a remand is necessary with respect to the claim for service connection for a gastrointestinal disability. Specifically, the Veteran should be provided a VA examination to determine the nature and etiology of the claimed disability. Service records show that the Veteran was treated for viral gastroenteritis in December 1974 during a period of active duty, and she reported experiencing stomach or intestinal trouble on reports of medical history during her National Guard service in March 1980 and July 1982. In March 1982, she was noted to have a history of IBS and in July 1982 was diagnosed with "spastic colon" controlled with diet. These complaints were made during or immediately after a period of active service for training. After service, the Veteran consistently complained of lower abdominal pain and constipation beginning in May 2003. Multiple tests and examinations resulted in a diagnosis of gastroparesis. VA treatment records also document the Veteran's own self-reports of a history of IBS beginning in 2003. As the record contains evidence of gastrointestinal complaints during and after service, the Board finds that a VA examination and medical opinion are necessary to determine the nature and etiology of the claimed disability, to include whether they are caused or aggravated by the service-connected PTSD. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of any gastrointestinal disability, to include IBS, present during the appeal period (since June 2014). The examiner must review the claims file in conjunction with the examination. The examiner is asked to determine whether it is at least as likely as not that a chronic gastrointestinal disability is etiologically related to a period of active military service, to include the Veteran's active service in the National Guard. The examiner should also determine whether it is at least as likely as not that a chronic gastrointestinal disability is proximately due to or aggravated beyond its natural progression by the Veteran's service-connected PTSD. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The examiner should consider service treatment records, which show treatment for viral gastroenteritis in December 1974 during active duty, as well as some complaints during active National Guard service. On a March 1980 report of medical history during a period of active service for training, the Veteran reported experiencing stomach, liver, or intestinal trouble. The examining provider noted a history of irritable bowel syndrome. Similarly, on July 17, 1982, the day after completing a period of active service for training, the Veteran again complained of stomach trouble and was noted to have a "spastic colon" controlled with diet. The examiner should also consider post-service treatment records, which document consistent complaints of gastrointestinal issues beginning in May 2003 at the VAMC, when the Veteran reported a several year history of intermittent left lower quadrant pains and a history of IBS. Multiple tests were performed through the gastroenterology department, and she was diagnosed with "gastroparesis, idiopathic type, responding to Reglan" in May 2006. The examiner should also consider the evidence indicating a link between the claimed IBS and PTSDin May 2006 and November 2013, the Veteran's VA gastroenterologists indicated there was an "underlying functional GI component [with] visceral hypersensitivity" related to her not-optimally managed PTSD and depression. The examiner must also provide an explanation for all opinions provided. If any requested opinion cannot be provided without resort to speculation, the examiner should explain whether the inability to provide the opinion is due to the limits of the examiner's medical knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the opinion to be provided. K. R. FLETCHER Acting Veterans Law Judge Board of Veterans' Appeals M. Riley, Attorney for the Board Department of Veterans Affairs 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.