Citation Nr: 21076877 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 14-40 412A DATE: December 28, 2021 ORDER Entitlement to an initial rating of 50 percent, but no higher, for service-connected PTSD effective May 26, 2010 is granted. REMANDED Entitlement to service connection for a back condition is remanded. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran's PTSD symptoms more nearly approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to a rating of 50 percent, but no higher, for service-connected PTSD effective May 26, 2010 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 2001 to March 2002, October 2002 to October 2003, and June 2005 to September 2006. This matter originally came before the Board of Veterans' Appeals (Board) from July and September 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Board issued a decision denying the Veteran's claims for service connection for a back condition and an increased rating for PTSD. The Veteran appealed the November 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Partial Remand (JMPR) vacating the Board's November 2020 decision and remanding this matter for additional development. Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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). Accordingly, the evidence considered in determining the level of impairment is not restricted to the symptoms provided in the diagnostic codes. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders. A rating of 10 percent is warranted when there is occupational and social impairment due to mild or transient symptoms with decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A rating of 30 percent is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupation tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A rating of 50 percent is warranted when there is 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 (retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; and difficulty establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is objective evidence demonstrating that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with his routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or 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 the inability to establish and maintain effective relationships. Id. A 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; and memory loss for names of close relatives, own occupation, or own name. Id. The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. 1. Entitlement to an initial rating of 50 percent, but no higher, for service-connected PTSD. The Board finds that an initial evaluation of 50 percent, but no higher, for the entire period on appeal is warranted. Throughout the entire period on appeal, the Veteran has had occupational and social impairment due to symptoms such as panic attacks, sleep disturbances, nightmares, depressed mood, issues with short and long term memory, intrusive thoughts, hypervigilance, and avoidance of public places and crowds. The Veteran was afforded a VA examination in September 2011. The Veteran reported depressed mood "every other day" for a duration of a "couple" of hours, anxiety, panic attacks that occur weekly or less often, periods of extreme excitement that quickly became depression, and improper conduct during such periods of extreme excitement. The examiner additionally opined that a mental condition had been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication." The Board acknowledges the September 2011 VA examination, and notes that treatment records, lay statements, and vocational rehabilitation records show the Veteran's PTSD symptoms, including his occupational and social impairment, were more severe than determined at this VA examination. For example, October 2010 VA treatment records show the Veteran reported sleep issues, nightmares, being easily startled, not wanting to get out of bed or go in public, and flashbacks. He further stated, "I avoid malls, grocery stores, libraries, my son's school functions, it's hard for me to be in a place where there are a lot of people." In August 2010 correspondence, the Veteran's girlfriend reported the Veteran does not express emotion, has late night flashbacks where he wakes up upset, has daily depression accompanied by crying, has a lack of self-worth, and has a lack of motivation. In the July 2015 VA form 28-1902b, a vocational rehabilitation counselor determined the Veteran's PTSD symptoms cause "severe social, personal, and occupational impairments in the following ways: difficulty concentrating, anxiety, issues with short and long term memory, intrusive thoughts, hypervigilance, insomnia and other sleep disturbances, overwhelming feelings of anger, withdraw from society, and bouts of depression." Additionally, the vocational rehabilitation counselor noted the Veteran's PTSD symptoms make it difficult for him to function in crowded locations, and that he often wakes up with physical reactions to nightmares, including confusion and startle reflexes such as swinging his arms. Additionally, the Veteran has reported periods of homelessness due to his PTSD symptoms. The Board resolves all reasonable doubt in favor of the Veteran and finds that the assignment of a 50 percent evaluation should be assigned throughout the entire appeal period. The evidence of record reflects an overall disability picture of occupational and social impairment with reduced reliability and productivity, and accordingly, the Board grants an initial 50 percent evaluation for the Veteran's PTSD. The Board has also considered the Veteran's symptoms which are not included in the rating criteria listed under 38 C.F.R. § 4.130 and whether they constitute symptoms that would be comparable in type and degree (frequency, severity, and duration) to the criteria for a 70 or 100 percent rating. See Mauerhan, 16 Vet. App. at 443; Vazquez-Claudio v. Shinseki. Though the Veteran's symptoms have been shown to be significant and manifest with frequency, the Board, in weighing all of the evidence, does not find that these symptoms are of a comparable severity to the symptomatology required for a rating of 70 or 100 percent. The Veteran has not exhibited symptoms that more nearly approximate a 70 or 100 percent rating. The Veteran's occupational and social impairment is not caused by suicidal ideation; obsessional rituals which interfere with his routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; or the inability to establish and maintain effective relationships. The record shows the Veteran did not report any of the above symptoms. Additionally, he has specifically denied suicidal or homicidal ideation and hallucinations, and has been observed as appropriately groomed with good hygiene. Furthermore, although the Veteran has difficulties with relationships due to his PTSD symptoms, November 2010 VA treatment records indicate the Veteran's coping strategies include his support from family and friends. VA treatment records also show the Veteran has reported having a long-term girlfriend, increased communication with his family, and maintained a relationship with his son. Thus, the record shows that the Veteran does not have an inability to establish and maintain relationships, nor does he have total social impairment. This is consistent with occupational and social impairment associated with a 50 percent rating, but no higher. Thus, the Board resolves reasonable doubt in favor of the Veteran and concludes that his symptoms likely more nearly approximate the criteria for a 50 percent rating, but no higher. The Board finds the Veteran is entitled to an initial rating of 50 percent for his PTSD, effective May 26, 2010. REASONS FOR REMAND 1. Entitlement to service connection for a back condition is remanded. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A VA examiner must consider the Veteran's lay statements regarding the incurrence of a disorder, and his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23, 39-40. A Veteran is competent to report symptoms that are capable of lay witness observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran was afforded a VA examination in August 2014. The examiner opined that the Veteran's current back condition is less likely than not related to service, and is more likely due to "genetic disposition and poor diet." He further explained the Veteran was not treated for back pain while in service, did not experience an injury to the spine, and that he was "never in combat wearing heavy gear." Regarding the Veteran's "poor diet," the examiner stated the Veteran was a heavy soda pop drinker and noted there is a potential link to heavy use of carbonated drinks and advancing arthritis. The JMPR stated three main reasons this examination was inadequate. First, although the examiner noted the Veteran's radiographs show that he has Schmorl's nodes, he did not discuss their significance and how they relate to the etiology of his back condition. Second, the examiner did not properly consider and address the Veteran's lay statements that he jumped in and out of vehicles while carrying heavy backpacks and had recurring back pain in service. Lastly, although the examiner reported Veteran's back condition is more likely than not related to his heavy consumption of carbonated sodas and genetic disposition, he failed to explain what genetic predisposition he experiences or provide any references to the literature relied upon for his opinion about the consumption of carbonated beverages. Additionally, in July 2021 correspondence, the Veteran submitted medical literature regarding the effects of soldiers carrying heavy gear. Thus, a remand is necessary to obtain an addendum opinion that specifically addresses the Veteran's medical literature submitted in July 2021, his lay statements, the significance of his Schmorl's nodes, and fully explains all opinions rendered. The matters are REMANDED for the following action: 1. Obtain all VA treatment records not currently associated with the claims file. 2. Obtain an addendum opinion for the Veteran's back condition. The entire file should be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's back condition was incurred in or otherwise related to active duty service, to include his reports of carrying heavy gear while jumping in and out of vehicles. In rendering this opinion, the examiner must consider and address the Veteran's lay statements regarding his back pain during service, service treatment records wherein the Veteran reports recurrent back pain, medical literature submitted in July 2021, and the significance of the Veteran's Schmorl's nodes. The examiner is reminded that the absence of a diagnosis or complaint of a condition in service treatment records may not be relied on as the sole rationale for finding that a claimed disability is not related to service. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles, to include references to medical literature, involved would be of considerable assistance to the Board. Specifically, the examiner should address the actual etiology of the Veteran's condition and discuss the factors that affect the Veteran rather than list them. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.