Citation Nr: 21077191 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 19-12 242 DATE: December 28, 2021 ORDER Entitlement to an increased disability rating of 70 percent for post-traumatic stress disorder (PTSD), but no greater, is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran's PTSD symptoms have more closely approximated occupational and social impairment with deficiencies in most areas, but not total social impairment. CONCLUSION OF LAW The criteria for a disability rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2000 to July 2006. She served in Southwest Asia from September 2001 to December 2001, from December 2002 to June 2003, from February 2004 to August 2004, and from December 2005 to June 2006. In a September 2019 decision, the Board denied the Veteran's claim for an increased rating higher than 50 percent for her service-connected PTSD. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court). In December 2020, the Court vacated the September 2019 Board decision and remanded the Veteran's claim to the Board for further development and adjudication. In August 2021, the Board remanded the matter for actions consistent with the Court's 2020 Memorandum. The matter has returned to the Board for further appellate review. Entitlement to an increased disability rating of 70 percent for post-traumatic stress disorder (PTSD) Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran contends her service-connected PTSD is more severe than currently assigned. The Veteran is rated at 50 percent disabling for her PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code (DC) 9411, 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, and difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for 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. Id. 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 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 name. Id. Although the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (2013). Considering all relevant evidence, the Board finds that a disability rating of 70 percent, but no higher, for the Veteran's service-connected PTSD is warranted. The Veteran has exhibited occupational and social impairment in most areas. The Veteran was afforded a VA examination in July 2014. She was diagnosed of PTSD. The examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner noted symptoms of PTSD including depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. It was noted that the Veteran's anxiety, slight memory problems, tension, anger issues, sleep issues, bad dreams, and mistrust were covered under the PTSD diagnosis. See April 2014 C&P Examination. In a February 2014 Clinic Note, it was indicated that the Veteran strongly denied any suicidal ideation but reported that there was only one time that she had suicidal ideation in the past in 2006 when she thought it was better off if she was dead. The Veteran denied any particular triggering events that led her to think that way. See CAPRI. The Veteran was afforded a VA examination in July 2016. The diagnosis was PTSD with anxious and depressive features, attributed to military deployment traumas and military sexual traumas. The Veteran was asked about current or recent suicidal/homicidal thoughts or ideation but denied ideation and did not appear to be at imminent risk. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. The examiner noted that other symptoms of the Veteran's PTSD were specific to military sexual trauma and detainee harassment as Veteran reported reduced self-confidence and shame. The examiner noted that this is specific to inter/intrapersonal functioning as the Veteran has avoided the emotional vulnerability of disclosing these experiences to her husband. The examiner further explained that interest in intimacy is reduced and efforts of emotional and physical intimacy are impaired by intrusive thoughts and imagery. The examiner added that this does not mean one is incapable of sexual intimacy, but it does mean the process and connection very likely is reduced or suffers as an effect of the sexual trauma. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner remarked that this appears to represent an increase in functional impairment when compared to her 2014 compensation examination. See July 2016 C&P Examination. The Veteran was afforded a VA examination in June 2017. The diagnosis was PTSD, chronic. The Veteran reported that she has difficulty sleeping and estimated that she sleeps about three to four hours per night. She stated that her daytime energy was "not bad," but that sitting all day at her current job tended to sap her energy. The Veteran's symptoms included anxiety, suspiciousness, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The examiner indicated that the Veteran's PTSD manifested as occupational and social impairment with reduced reliability and productivity. See June 2017 C&P Examination. The Veteran was afforded another VA examination in July 2018. The diagnosis was PTSD. The Veteran reported chronic sleep impairment, that she only sleeps about three hours, and that she would go several days without any sleep which has impacted the quality of her work. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran's reported symptoms of sleep disturbance and anxiety were subsumed under the diagnoses provided. The examiner indicated that the Veteran's PTSD manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. See July 2018 C&P Examination. The Veteran was recently afforded a VA examination in October 2021. The examination was conducted via approved video telehealth due to COVID-19 restrictions. The Veteran reported that she has problems with memory as she has difficulty remembering little and big things. She reported that she sometimes forgets things on her job, to the point that she asks others what she should do on tasks that she thinks that she should remember. She described herself as content with her life, although she sometimes has some depressive feelings that usually last for a day to occasionally three days. She could not identify any obvious precipitants. She usually has good control of her anger except when she has substantial sleep problems, at which time she is more irritable. The Veteran's symptoms included anxiety and agitation in social settings, decreased sex drive, intimacy avoidance with her husband, and inability to maintain effective relationships with friends. The examiner indicated that the Veteran's PTSD manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner remarked that the Veteran has depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. See October 2021 C&P Examination. In a December 2021 letter, the Veteran's sister E.D, stated that the Veteran had become less sociable after her military service; and that frequently during family get-togethers, she has observed the Veteran "coming to" as if she has been in a mental fog. See Buddy/Lay Statement. A December 2021 statement from K. D also indicated that the Veteran has "at the most unexpected times, just dissolved into tears...unexpectedly and without any provocation or discussion of loss"; and that the Veteran has stopped enjoying time with her extended family. See Buddy/ Lay Statement. In a December 2021 letter, the Veteran's spouse stated that his wife is easily angered and is mostly withdrawn and irritable. He noted that the Veteran lacks energy to attend to her personal hygiene and that their marriage is somehow devoid of intimacy. See Buddy/Lay Statement Given all of the above evidence, the Board finds the Veteran's actions and symptoms (such as chronic sleep impairment, irritability, anger issues, lack of personal hygiene, mild memory loss and near continuous panic attacks) are of such severity, frequency, and duration to more nearly approximate occupational and social impairment with deficiencies in most areas, including work, judgment, thinking, and mood. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that her psychiatric symptoms warrant a 70 percent rating. The Board bases this finding on the medical evidence of record, as well as considering the statements made by the Veteran and her family members. The Veteran's symptom picture does not, however, reflect total social and occupational impairment, the next criteria required for the next highest rating, or 100 percent. While the Veteran did experience some symptoms contemplated by a 100 percent rating, the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. Indeed, the Veteran remembers her own name and the names of her family members. While the record indicates that the Veteran may be experiencing some nightmares, the record does not demonstrate that such are considered hallucinations, nor are they persistent. Likewise, the record indicates that the Veteran may be experiencing mild memory loss; however, these endorsements have not been described as causing an impairment that affects the Veteran's ability to function independently. Furthermore, and critically, the Veteran is not totally socially impaired. While the Veteran reported self-isolation/withdrawal, the Veteran also reported working a full-time job, and getting along with her co-workers. The record also does not reflect the Veteran is a persistent danger to others despite her irritability and anger. Finally, the Veteran was consistently found to be properly oriented and denied any delusions, hallucinations, or gross impairment in thought or communication. See CAPRI. As noted above, the Veteran's symptoms are either contemplated by or more consistent with a 70 percent rating. Accordingly, an increased disability rating of 70 percent, but no higher, for PTSD is granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a left knee disability is remanded. Although further delay is regrettable, a remand is necessary for an adequate VA opinion. The Veteran contends that she has a current left knee disability that developed as a result of an in-service injury when she was playing soccer, and that she has experienced symptoms of left knee since her in-service injury. While the Veteran has not specifically claimed that her left knee disability is due to any of her service-connected disabilities including a lumbago (back) disability, the Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). The July 2018 and September 2021VA examination opinions are inadequate to the extent the examiners did not consider all theories of entitlement. An addendum medical opinion is necessary in order for the Board to make a fully-informed decision on the issue of a left knee disability because no VA examiner has opined whether it is secondary to a service-connected lumbago disability or any other service connected disability. The matters are REMANDED for the following action: 1. Obtain all outstanding/updated medical records pertinent to the left knee disability and associate them with the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's left knee disability. The Veteran's claims file and a copy of this remand should be furnished to the examiner, who should indicate that he or she has reviewed the claims file. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. The examiner must opine on the following and provide a rationale to support each opinion: (a.) Whether the left knee disability is at least as likely as not proximately due to a service-connected disability, to include the lumbago disability. (b.) Whether the left knee disability is at least as likely as not aggravated beyond its natural progression by a service-connected disability, to include the lumbago disability. A complete rationale for all opinions is required. 3. Readjudicate the left knee disability issue in light of all the evidence of record. If any benefit sought on appeal remains denied, then a Supplemental Statement of the Case should be furnished to the Veteran and her representative, and they should be afforded a reasonable time to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.