Citation Nr: 21007720 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-05 683 DATE: February 10, 2021 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) is granted throughout the entire period under appeal. REMANDED Entitlement to an initial rating in excess of 10 percent for healed partial ACL tear of the right knee with arthritis is remanded. INTRODUCTION The Veteran served on active duty from September 2000 to May 2005. When this case was most recently before the Board in May 2020 the above-noted issues were remanded for further development. The case has since been returned for additional appellate review. FINDING OF FACT During the entire period on appeal, the occupational and social impairment from the Veteran’s PTSD has most nearly approximated total. CONCLUSION OF LAW The criteria for a rating of 100 percent for PTSD have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2020). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2020). Where a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2020). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2020). Factual Background and Analysis The RO has assigned a staged rating for the Veteran’s PTSD throughout the appeal period. The Board disagrees with the assigned staged rating, and for reasons explained below, the Board finds a 100 percent schedular rating is warranted throughout the entire appeal period. PTSD is rated under the General Rating Formula for Mental Disorders. In pertinent part, it provides the following: 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.............................................................................................................50 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 worklike setting); inability to establish and maintain effective relationships.........................70 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...........100 38 C.F.R. § 4.130, Diagnostic Code 9411. Critically, the Board observes that the rating criteria for a 70 percent rating for PTSD indicates an array of symptoms, which are likely sufficient to cause impairment and deficiencies in most areas of life functioning, to include work, school, family relations, judgment, thinking, or mood. Such symptoms need not rise to the level of activity preclusion, but rather negatively influence or impact upon most areas of life functioning. A higher 100 percent rating is warranted when the evidence indicates total impairment. 38 C.F.R. § 4.103, Diagnostic Code 9411 (2020). The symptoms considered in determining the level of impairment under the Rating Schedule for PTSD are not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. The Board has carefully reviewed the Veteran’s treatment reports from the Tucson, Dallas, and Phoenix VA Medical Centers. The Board has also thoroughly reviewed the results of VA examinations conducted in May 2015, July 2017, and June 2020. Further, the Board has also prudently considered the Veteran’s own statements. In sum, those records show the Veteran received consistent mental health care throughout the period of this appeal. The above-noted evidence also shows the Veteran has experienced several significant symptoms and impairments, which include: severely depressed mood, anxiety, memory deficiencies, suspiciousness, trouble sleeping, panic attacks, impaired judgment, disturbances of motivation and mood, impaired work and social relationships, difficulty with stressful circumstances, inability to maintain effective relationships, impaired impulse control with violent outbursts and inappropriate behavior, suicidal ideations, and audio/visual hallucinations. Further, the evidence shows the Veteran has experienced troubled social relationships and has lost several jobs as a result of his PTSD manifestations. Additionally, the Veteran has reported strained relations with his spouse and children. In this case, the copious evidence plainly establishes the Veteran’s psychiatric manifestations have resulted in deficiencies in all applicable areas of life functioning. Specifically, his symptoms have significantly impaired his ability to work, caused him marked social and family impairments, caused deficiencies in judgment, compromised his thinking, and resulted in severe mood impairments. As noted above, the 100 percent evaluation criteria does not indicate total occupational and social preclusion; rather, it merely states a veteran must have total impairment. The Board again notes a 70 percent rating is warranted when psychiatric manifestations cause impairment in most areas of life functioning; however, this Veteran’s psychiatric manifestations have resulted in impairments in all areas of life. As such, the Board has afforded the Veteran the benefit of the doubt and finds his disability picture more nearly approximates the criteria necessary for a 100 percent rating for the entire period on appeal. REASONS FOR REMAND While additional delay of the above-noted claim is unfortunate, the Board finds further development is required before the Veteran’s remaining claim is decided. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the course of the May 2020 remand, the Board fully explained that an assessment of the Veteran’s range of motion measurements in weight bearing, non-weight bearing, and in passive motion were necessary to properly evaluate the Veteran’s right knee disability. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran recently underwent another VA examination; however, like the prior examinations, the October 2020 VA examiner failed to provide these critical evaluative criteria. As such, a remand is again required. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, these matters are REMANDED for the following actions: Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected right knee disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.