Citation Nr: 21008487 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-62 415 DATE: February 17, 2021 ORDER A rating in excess of 70 percent for the service-connected posttraumatic stress disorder (PTSD) with anxiety, panic attacks and depression is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for the service-connected right wrist osteoarthritis is remanded. Entitlement to a rating in excess of 10% for the service-connected residuals of left wrist radial fracture with dislocation is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran’s PTSD with anxiety, panic attacks and depression symptoms have not approximated total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for the service-connected PTSD with anxiety, panic attacks, and depression are not met. 38U.S.C. §§1155, 5107; 38C.F.R. §§4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1986 to March 1994. In October 2019, the Board of Veterans’ Appeals (Board), as relevant, denied an initial rating in excess of 10 percent for the Veteran’s right wrist osteoarthritis, a rating in excess of 10 percent for her left wrist residuals of a radial fracture, and a rating in excess of 70 percent for her PTSD with anxiety, panic attacks, and depression. The Veteran appealed such aspects of the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), which vacated the Board’s decision as to such claims and remanded these matters to the Board for further appellate consideration. Increased Rating – PTSD with anxiety, panic attacks, and depression Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected psychiatric disorder has been assigned a 70 percent disability rating throughout the period on appeal. She contends that she is entitled to a higher rating for her PTSD with anxiety, panic attacks, and depression. Although her service-connected psychiatric disorder has been rated under DC 9411, psychiatric disorders, however diagnosed, are rated under the General Rating Formula for Mental Disorders, and the criteria under this formula shall be considered no matter which diagnostic code is assigned. Under the General Rating Formula for Mental Disorders, a 70 percent evaluation is assigned when a psychiatric disability causes 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); or an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. A 100 percent rating is assigned when a psychiatric disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board notes that, with regard to the use of the phrase “such as” in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “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 only 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). The United States Court of Appeals for the Federal Circuit emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It held that 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. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. Instead, VA must consider all symptoms of a claimant’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 (DSM). DSM-V is applicable in the instant case, as the issue on appeal was certified to the Board in 2018 and, thus, after August 4, 2014. 80 Fed. Reg. 14308 (March 19, 2015). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio, 713 F.3d at 118. It is the impact of the symptoms on occupational and social functioning that determines the rating. The Veteran’s case has been considered entirely under the VA rating schedule contained in 38 C.F.R., Part 4. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran in this appeal seeks a rating in excess of 70 percent for her psychiatric disability, and the only possible higher schedular rating is a total schedular evaluation of 100 percent. However, the evidence does not support a finding that her psychiatric symptomatology has resulted in total occupational and social impairment at any time during the appeal period. To that effect, her symptoms are more encompassed by the current 70 percent rating, which is assigned when psychiatric symptomatology has caused occupational and social impairment, with deficiencies in most areas. At a March 2012 VA PTSD examination, the examiner concluded that the Veteran’s psychiatric symptoms resulted in 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. Socially, the Veteran reported that she had been married to her spouse for 33 years and had two adult daughters. She reported having had a healthy social life prior to entering the military, but, since then, only having a limited social life and only socializing with her family. For VA rating purposes, the examiner noted that the following symptoms applied to the Veteran’s psychiatric condition: anxiety; suspiciousness; panic attacks that occur weekly or less often; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work-like setting. She also experienced constant worry about having a panic attack and implications of those panic attacks. At an October 2015 VA PTSD examination, the examiner found that the Veteran’s psychiatric symptoms resulted in occupational and social impairment with reduced reliability and productivity. As to social implications of her psychiatric disability, the Veteran reported that her husband noticed that her poor sleep patterns, irritability, agitation reaction, and desire to isolate affected their marriage. Occupationally, she reported having worked at Walmart for the past 13 years. At work, she would be agitated around others, irritable, and triggered by noise and crowds. She denied having suicidal or homicidal ideations. The examiner noted that the following symptoms applied to the Veteran’s psychiatric disability: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and inability to establish and maintain effective relationships. The examiner observed that the Veteran’s affect was flat and detached but that there was no evidence of psychotic thinking. Her thought content and thought processing were intact, and her judgment and insight were fair. She did not appear to pose any threat of danger or injury to herself or others. The Veteran submitted a written statement in support of her claim in November 2016, wherein she described the trauma she experienced in service. She also submitted a checklist of the symptoms she was experiencing due to her psychiatric disability. Therein, she “checked” the following: anger; anxiety; chronic sleep problems; denial; depression; difficulty making decisions; emotional numbing; flashbacks; guilt; inability to make and keep friends; isolation; lack of self-esteem; memory loss; neglect of family; nervousness; no friends; panic attacks; problems with communication; problems at work; sense of helplessness; suspiciousness; taking medications for mental conditions; and unable to share feelings. Notably, she did not “check” the following symptoms which could possibly support a 100 percent rating for her psychiatric condition: danger of hurting self or others; delusions; hallucinations; inappropriate behavior; neglect of personal hygiene; suicidal feelings/thoughts; or periods of violence. At a May 2017 VA PTSD examination, the examiner concluded that the Veteran’s psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported continuing to feel emotionally connected to her husband of 37 years and her children and grandchildren. She also reported continued isolation from non-family and also stated that she was still employed with Walmart and in good standing there, with good work performance. She denied experiencing suicidal thoughts and reported never having made any suicide attempts. For VA rating purposes, the examiner noted that the Veteran experienced the following psychiatric symptoms: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner observed that the Veteran was well-groomed, cooperative, and fully oriented. She maintained good eye contact and appeared to be a reliable historian. Her mood was depressed, and her affect was stable. There was no evidence of social discomfort and anxiety during the interview. Her speech was spontaneous, articulate, and easily understood. Her attention and concentration were normal, and memory recall of service, symptoms, and related interview data appeared to be easily accessed by the Veteran. The Veteran underwent another VA PTSD examination in February 2018. Overall, the examiner concluded that the Veteran’s psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran reported living with her husband of 38 years, and having two daughters, the younger of which with whom she communicated more. She was still employed with Walmart as a third shift stocker. For VA rating purposes, the examiner noted that the Veteran experienced the following psychiatric symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; impairment of short and long-term memory; flattened affect; difficulty in understanding complex commands; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; and neglect of personal appearance and hygiene. The examiner observed that the Veteran arrived on time for her appointment and that her mood was depressed. She was oriented to person, place, time, and situation. The Veteran denied any suicidal ideation or plan. The examiner also concluded that the Veteran did not appear to pose any threat of danger or injury to herself or others. In July 2018, the Veteran submitted another checklist of her psychiatric symptoms wherein she “checked” the following symptoms: anger; anxiety; chronic sleep problems; denial; depression; difficulty making decisions; emotional numbing; flashbacks; guilt; heavy use of alcohol; inability to make and keep friends; isolation; lack of emotions; lack of self-esteem; memory loss; neglect of family; no friends; panic attacks; problems with communication; problems getting along with people; sense of helplessness; suspiciousness; taking medications for mental conditions; and unable to share feelings. Notably, again, she did not “check” the following symptoms which could possibly support a 100 percent rating for her psychiatric condition: danger of hurting self or others; delusions; hallucinations; inappropriate behavior; neglect of personal hygiene; suicidal feelings/thoughts; or periods of violence. In August 2018, the Veteran underwent another VA PTSD examination. Overall, the examiner concluded that the Veteran’s psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported that her spouse of 38 years had passed away in April 2018. Her relationships with her two daughters had deteriorated and no longer existed because one daughter was in prison and the other did not like her because of historical family dysfunction. She was not dating at the time. She also reported that she left her job at Walmart in March 2018 after 15 years due to her husband’s health problems and her anxiety issues. She reported there being a minor improvement in her mental health history since the February 2018 VA examination, in that her panic attacks were now well-managed by her current medication. She denied a history of suicide attempts, suicidal thinking, or psychiatric admissions. For VA rating purposes, the examiner noted that the Veteran experienced the following psychiatric symptoms: depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and inability to establish and maintain effective relationships. The examiner observed that the Veteran was well-groomed, cooperative, and fully oriented. She maintained good eye contact and appeared to be a reliable historian. Her mood was depressed, and her affect was stable. There was evidence of social discomfort and anxiety during the interview. Her speech was spontaneous, articulate, and easily understood. There was no evidence of hallucinations, delusions, or psychoses. She did not report psychoses and was not observed attending to internal stimuli. Her attention and concentration were observed as normal, and memory recall of service, symptoms, and related interview data appeared to be easily accessed by the Veteran. The examiner concluded that the Veteran did not appear to pose any threat of danger or injury to herself or others. The Veteran’s VA treatment records spanning the appeal period were also reviewed, but they do not contain evidence that her psychiatric symptomatology was more severe than that shown on concurrent VA examinations. The Board finds that the evidence shows that the Veteran’s service-connected psychiatric symptoms have not resulted in total occupational and social impairment at any time during the period on appeal. No VA examiner has concluded otherwise. The Veteran worked throughout the majority of the appeal period with the same employer, having resigned in March 2018 due to her spouse’s health issues, and her anxiety. However, the evidence does not reflect that her anxiety was of a level to render her totally occupationally impaired. She has also not been found to exhibit any of the symptoms depicted by the General Rating Formula for Mental Disorders as warranting a 100 percent schedular rating for a psychiatric disorder. Specifically, symptoms of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; 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, occupation, or own name have not been shown at any time during the appeal. Although she was noted as neglecting her personal appearance and hygiene by the February 2018 VA examiner, and as experiencing some memory loss, these symptoms are contemplated by the 70 percent rating currently assigned to her service-connected psychiatric disability. She does report living a socially isolated life, but the record does not indicate that her psychiatric condition renders her totally socially isolated. Her family relationships deteriorated over the appeal. However, the deteriorations of these relationships were mainly reported to be due to external events, such as death and imprisonment. The relationship with one of her daughters was noted as being non-existent due to historical family dysfunction, but it was not asserted that the Veteran’s psychiatric state caused the dysfunction. Thus, while the record does show that the Veteran’s psychiatric disability has affected her occupational and social impairment, it cannot be concluded that she is totally occupationally and socially impaired due to symptoms warranting a 100 percent schedular rating. Accordingly, and in light of the above, the Board concludes that the VA schedular rating criteria for a 100 percent rating have not been met. Significantly, relevant evidence associated with the current appeal does not even illustrate a situation in which one of two ratings could be applied, because the Veteran does not evidence any symptoms which would warrant a 100 percent rating. Therefore, a rating in excess of 70 percent for the Veteran’s service-connected PTSD with anxiety, panic attacks, and depression is not warranted. REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for the service-connected right wrist osteoarthritis Entitlement to a rating in excess of 10% for the service-connected residuals of left wrist radial fracture with dislocation The Veteran seeks higher ratings for her service-connected right and left wrist disabilities. She was most recently examined by VA for the severity of these disabilities in February 2017 and in February 2018. As noted in the JMPR, these examinations did not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In Sharp, the United States Court of Appeals for Veterans Claims (Court) addressed 38 C.F.R. § 4.40, which states that a VA examiner must “express an opinion on whether pain could significantly limit functional ability,” and the examiner’s determination in such regard should, if feasible, be portrayed in terms of the degree of additional loss of range of motion due to pain on use or during flare-ups. In this regard, the Court concluded that, when a VA examiner is asked to provide an opinion as to additional functional loss during flare-ups of a musculoskeletal disability, the examiner must obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flare-ups. The Court also concluded that, if the examination was not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot opine as to additional loss of range of motion during a flare-up without resorting to mere speculation, the examiner must make clear that he/she has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but that any member of the medical community at large could not provide such an opinion without resorting to speculation. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In the February 2017 VA examination report, the examiner was unable to state without mere explanation whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or when the Veteran’s wrists were used repeatedly over a period of time. As to why the examiner could not state without mere speculation, the examiner explained that the examination was not being conducted immediately after repetitive use over time or during a flare up. There is no indication that the examiner attempted to obtain information from the Veteran which would have allowed him to provide estimates of functional loss during flare-ups or after repetitive use over time. Similarly, in the February 2018 VA examination report, the examiner was unable to state without mere explanation whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or when the Veteran’s wrists were used repeatedly over a period of time. His reasoning for being unable to opine on additional functional loss for these situations was that “all three measurements done on exam[ination] today were the same.” Again, there is no indication that the examiner attempted to obtain information from the Veteran which would have allowed him to provide estimates of functional loss during flare ups or after repetitive use over time. Neither of the above VA examiners adequately explained why estimated ranges of motion could not be measured. Thus, the Board finds the opinions to be inadequate under Sharp, as it is unclear whether the examiners considered all procurable data, including information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups and repetitive use over time elicited from the Veteran. As such, a new VA examination is needed to assess the current severity of the Veteran’s service-connected left and right wrist disabilities before the Board can decide these claims. Accordingly, these matters are REMANDED for the following action: 1. Obtain VA treatment records from September 2018 through the present. 2. Then, schedule the Veteran for an appropriate examination to determine the current severity of the service-connected osteoarthritis of her right wrist and her service-connected residuals of a left wrist radial fracture with dislocation. The examiner should review the claims file in conjunction with the examination. All necessary tests should be completed, and all pertinent pathology associated with these service-connected disabilities—to include, but not limited to, any passive and active limitation of motion of the Veteran’s left and right wrists—should be annotated in the examination report. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and the degree of functional loss during flare ups—as well as the degree of functional loss after repetitive use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected disabilities alone and discuss the effect of the disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding additional functional loss due to repetitive use over time or flare-ups without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). No action is required of the Veteran until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Her failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that she has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.