Citation Nr: 21007537 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 18-45 303 DATE: February 9, 2021 ORDER Entitlement to disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for right elbow disability is remanded. FINDING OF FACT The Veteran’s PTSD has manifested as occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155 (2018); 38 C.F.R. §§ 4.1-4.16, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from September 1965 to September 1967. In September 2020, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive VA examinations for his PTSD and right elbow disability. The Veteran received new VA examinations in October 2020. The Veteran’s PTSD VA examination evaluated the severity of his disability and provided sufficient information to determine if an increased disability rating was warranted. The Board addresses the inadequacy of the right elbow examination in the remand portion below. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the Board acknowledges the Veteran made a general argument regarding the VA’s duty to assist and duty to notify. However, the Veteran failed to advance any specific argument regarding either duty. The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.20 (2020). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2020). 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). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent 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; or memory loss for names of close relatives, own occupation or own name. The Veteran received a VA examination in September 2014. He reported experiencing anxiety, nightmares, intrusive thoughts, loss of interest in things he used to enjoy, difficulty concentrating, and episodes of hypervigilance. In November 2014 he received another VA examination and reported similar symptoms. He reported not having many friends, but he enjoyed going out to eat, playing tennis, and watching sports. He communicated with his family and enjoyed his job. In addition to his previously reported symptoms, he had issues with irritable behavior, disturbances of motivation and mood, and difficulty maintaining relationships. The examiner opined that the Veteran’s PTSD caused occupational and social impairment with occasional decreases in work efficiency. In a January 2017 record the Veteran noted additional symptoms that he experienced. He reported having memory loss, problems at work, and a sense of helplessness. Similar symptoms were also noted in a December 2018 private opinion. The Veteran’s most recent VA examination was in October 2020. The Veteran stated that he lived alone. He has friend and continues to work in sales. He receives psychotherapy every two weeks and takes medications for his symptoms. The Veteran’s PTSD symptoms included markedly diminished interest or participation in activities, feelings of detachment or estrangement from others, irritable behavior and angry outbursts, exaggerated startle response, sleep disturbance, depressed mood, anxiety, suspiciousness, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and obsessional rituals which interfere with routine activities. The examiner noted that the Veteran was alert and fully oriented and his mood was euthymic and congruent affect. His speech and cognition were within normal limits. The examiner indicated that the Veteran was not considered a current imminent or increased risk of harm to himself. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s VA and private treatment records, VA examination, and lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating, such as difficulty in adapting to stressful circumstances, memory loss, and engaging in obsessive rituals. The severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate and are consistent with the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Board notes that the evidence fails to show that his PTSD symptoms result in total occupational and social impairment as required by the 100 percent rating. “Total” is defined as “whole, not divided; full; complete,” and “utter, absolute.” Black’s Law Dictionary, 1498 (7th ed. 1999). The medical and lay evidence of record does not show this level of impairment. The Veteran has remained employed and maintains social relationships. A 100 percent rating requires total occupational and social impairment due to certain symptoms. The Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran’s PTSD. The evidence of record does not indicate that the Veteran exhibited persistent delusions; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Accordingly, the Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. Thus, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 70 percent at any period during the appeal. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran received a VA examination for his right elbow disability in October 2020. The examiner found that the Veteran did not have a current disability, so his disability was not found to be related to service nor aggravated by service. However, the VA examination showed the Veteran had abnormal range of motion and reduced flexion strength. Consequently, the Board finds that the examination suggests evidence of a disability and therefore a new VA examination and opinion is necessary. The matters are REMANDED for the following action: 1. Scheduled the Veteran for a new VA examination and opinion by an examiner who has not previously examined the Veteran. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner is requested to identify any diagnosed right elbow disability. For any diagnosed right elbow disability, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right elbow disability began during active service or is related to an incident of service, including the February 1966 service record documenting right forearm pain. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. Lesley A. Rein Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.