Citation Nr: 21010189 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-24 237 DATE: February 24, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD) prior to September 19, 2019 and in excess of 70 percent thereafter is denied. REMANDED Entitlement to service connection for right knee condition is remanded. Entitlement to service connection for left knee condition is remanded. Entitlement to service connection for right shoulder condition is remanded. Entitlement to service connection for left shoulder condition is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for chronic lower back pain is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to September 19, 2019, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. From September 19, 2019, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent prior to September 19, 2019, and in excess of 70 percent thereafter, for PTSD have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1967 to June 1969, including service within the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. These claims were previously before the Board in April 2019, at which time they were remanded for additional development. That development having been completed; these claims are once again before the Board. During the remand period, it is noted that the RO granted service connection for allergic rhinitis (claimed as sinusitis) in an October 2019 rating decision. Thus, as this claim has been resolved in full, it is no longer before the Board. The RO also granted the Veteran an increased evaluation of 70 percent for PTSD effective September 19, 2019. As there is a higher evaluation available for the service-connected PTSD and the increased evaluation does not cover the entire period of appeal, the Veteran's claim is still in controversy and shall continue to be adjudicated by the Board. 1. Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD) prior to September 19, 2019 and in excess of 70 percent thereafter The Veteran was granted service connection for PTSD in a July 2013 rating action, at which time it was evaluated as 30 percent disabling, effective from December 2011. A May 2015 rating action increased the evaluation to 50 percent, effective from December 2011. As mentioned above, the RO then increased the rating to 70 percent effective September 19, 2019. Disability ratings are determined by applying a schedule of ratings that is 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the applicable rating criteria for mental disorders, 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; difficulty in establishing and maintaining 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 relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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); and inability to establish and maintain effective relationships. Id. The maximum rating of 100 percent 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 symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather 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, 443 (2002). Thus, the Board will consider whether “the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code,” and, if so, the “equivalent rating will be assigned.” Id. A veteran may only qualify for a given initial or increased rating based on mental disorder by demonstrating the particular symptoms associated with that percentage in the rating criteria, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Although a veteran’s symptomatology is the primary consideration in assessing a disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for that rating. Id.; 38 C.F.R. § 4.130. A disability rating in excess of 50 percent prior to September 19, 2019 In November 2011, the Veteran was referred by the VA for treatment at a Vets Center for his psychiatric disability. He was found positive for moderate to high severity PTSD and depression. He denied suicidal or homicidal ideation. He indorsed symptoms of intrusive thoughts, avoidance, hypervigilance, sleep disturbance and emotional numbing. He had a good relationship with his wife but was strained with his daughter and is on speaking terms with his son. He reported he had 12 jobs in the past seven years as a highway construction engineer, but has low tolerance for substandard work or corruption. His appearance was neat, he was friendly and cooperative, had above average intelligence, appropriate speech, and he was oriented to time, place, and person. He had normal memory, appropriate affect, and good judgement. He did not have delusions, hallucinations or grossly disorganized behavior. In a progress report the following month, the counselor noted his PTSD symptoms have increased as he was opening up to his war zone experiences, with less sleep and more nightmares, but he coped by staying active and compartmentalizing his trauma. He had difficulty tolerating crowds or gatherings, endorsed sleep disturbances, avoidance, emotional numbing and severe depression. He continued to deny suicidal ideation but daydreamed about living off the land in the woods. The Veteran was afforded a VA examination in May 2013, where he was diagnosed with PTSD. The examiner found he 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. He had symptoms of depressed mood, suspiciousness, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting. The Veteran reported having intrusive thoughts and dreams about his stressors. His sleep onset was good, averaging 6-8 hours a night, however, he had difficulty going back to sleep if awoken at night and sometimes woke up sweaty. He was provoked by the news and stayed mad for some time if he perceived government malfeasance leading to innocent deaths. He tried to avoid those thoughts and made a conscious effort to change the subject in his brain, which happened anywhere between four times a day to once every two weeks. He endorsed emotional distancing and numbness and noted he is quick to lose patience, more with the people he is close to. He stated his concentration is not very good as he cannot stay focused on tasks well. He was hypervigilant but did not have startle effect. He denied suicidal ideation but stated he thinks people would be better off without him and he would head out on his own in the woods. He was married to his wife in 1970 and had a good relationship with her and his son, but his daughter claimed he was not a good dad because of his temper. He also had a good relationship with his grandchildren. The Veteran worked several jobs in the past, but left for various reasons, including from stress, refusal to compromise his integrity and companies going broke. He currently worked seasonally. In his March 2014 Notice of Disagreement, the Veteran claimed he did not agree with the 30 percent rating initially assigned and that his VA examination was inadequate. He did not, however, specify how it was inadequate but stated he felt his condition was much worse than 30 percent. As noted earlier, his disability was increased to 50 percent in a May 2015 rating decision. The Veteran submitted several statements detailing his PTSD symptoms. In his November 2012 statement, he reported continuing nightmares which wake him up and leaves a feeling of being exhausted the next day. In his March 2015 statement, he stated he has tendencies towards isolation, numbness and anxiety. He frequently punched walls or smashed things when he was angry. He was unable to concentrate and has lashed out at his wife and children when it was too much. He stated he felt helpless to stop the horrible images in his head and is triggered by the news. He stated it was getting worse every day. He reported he does not have any close friends, but one friend recently passed away in 2013, causing him flashbacks. He also stated his dog passed away recently and since then he has become more argumentative and difficult. In his November 2018 statement, he stated he has difficulty sleeping due to anxiety, he needs to be around his new dog who wakes him up during a nightmare. When he is overwhelmed, he cannot process information. He also has little patience and claims he has periods where he stops breathing due to stress. He also stated he is in poor financial shape due to losing many jobs in the past. The Veteran’s wife also submitted statements that the Veteran has been suffering from PTSD since he left Vietnam. In the November 2012 statement, she noted he liked being away from people and working independently, and as time went on, he became more argumentative and had no patience. In her March 2015 statement, she noted he recently lost a friend from a heart attack which caused him to tense up and breath hard. He also lost his “therapy” dog and has since become more argumentative and angrier. The Board finds that the overall symptoms associated with the Veteran's service-connected psychiatric disability are most closely contemplated by a 50 percent disability rating, with such attributable symptoms as difficulty in establishing and maintaining effective work relationships, irritability, sleep impairment, and depressed mood. The evidence shows that the Veteran was able to maintain some social interactions with family members, as he had a good relationship with his wife, son and grandchildren. While the Veteran reported depression, hypervigilance, flashbacks, avoidance of crowds, intrusive thoughts, and sleep disturbances, there was no evidence of near continuous panic, obsessional rituals, incoherent speech, impaired impulse control, spatial disorientation, or suicidal ideation. As such, the Board finds that the Veteran's service-connected PTSD was at most, productive of occupational and social impairment with reduced reliability and productivity. In order to warrant a higher evaluation, the Veteran would need to show occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as the rating schedule sets out. However, this is not shown by the evidence of record during this time period. The Veteran’s daughter submitted a statement in June 2020, where she recounted her difficult childhood due to her father’s rage and violence and her suffering long-term physical and emotional abuse. She stated that her father’s PTSD did not elevate to the level it is now on September 19, 2019, but rather she perceived it to always have been at this level. That notwithstanding, the behaviors the daughter described all appear to have pre-dated the appeal period. As such, it does not provide a basis for an increased evaluation. In view of the foregoing, the Board finds that the nature, frequency, duration, and severity of the Veteran's symptoms as they relate to his PTSD warrant no more than a 50 percent schedular rating prior to September 19, 2019. Entitlement to a rating in excess of 70 percent after September 19, 2019 The Veteran was afforded another VA examination in September 2019. The examiner found 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. He noted the Veteran has been married for the past 50 years and continued to have a good relationship with his wife. The Veteran also reported his relationship with his children was close. He used an emotional support dog and considered himself a loner. He denied financial trouble and had interests in hunting, fishing, golf, scuba diving, surfing, and skiing. He attended church occasionally. The Veteran was depressed, anxious, angry and irritable. The examiner noted his depression was mild, but anxiety and anger were moderate to severe. He had panic attacks that occurred twice a week. He was anxious in crowds and avoided them. His sleep was restless as he awakened multiple times per night and had nightmares at least twice a week, but his dog prevented him from more frequent awakenings. He had intrusive memories, thoughts and images and tried to avoid thinking about them. He avoided people and had occasional angry outbursts, and at times broken things. His difficulty with concentration was severe and he felt cut off and detached. He was hypervigilant, suspicious and easily startled. He had thoughts of suicide, including planning to jump off a bridge, and sometimes dwelled on them for 2 or 3 days. He did not have homicidal ideation. He stated that he had difficulty maintaining employment because he did not want to compromise his integrity, and currently works 4 hours a week as a consultant. The Veteran’s hygiene and grooming was fair, and he had a sad mood, appropriate affect, clear and coherent thought process but was occasionally tangential and rambling. He had paranoid ideation but denied hallucinations or delusions. He was oriented to time, place, person and situation and his recent memory was intact. The Veteran’s wife submitted a June 2020 statement that the Veteran had difficulty holding a full-time job. The Board notes, the symptoms noted in the rating criteria are not intended to be an exhaustive list, but are examples of the types and severity of symptoms that indicate a certain level of disability. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) Based on the overall evidence of record, including the Veteran's lay statements, the effects of the symptoms of the Veteran's PTSD have not been described to be of a type, frequency and severity that rise to the level of total occupational and social impairment as contemplated by the criteria for a 100 percent scheduler rating. The Veteran did not demonstrate symptoms such 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); or disorientation to time or place. The Veteran continues to have a good relationship with his wife, and while he avoids people, he stated he attends church occasionally and enjoys hobbies. He is also able to work part-time as a consultant. Although the Veteran does have significant PTSD symptoms, such as nightmares, weekly panic attacks, and anxiety, the overall evidence does not demonstrate the symptoms contemplated for a 100 percent rating as to produce total occupational and social impairment. In conclusion, the evidence of record does not warrant a rating in excess of 50 percent prior to September 19, 2019 or 70 percent thereafter, for the Veteran's service-connected PTSD. 38 U.S.C. § 5110. REASONS FOR REMAND 1. Entitlement to service connection for right knee condition, left knee condition is remanded. The Veteran has never been afforded a VA examination specifically for his knees. Recent medical records reflect osteoarthritis of the knees bilaterally. Private treatment records from November 2018 note that the Veteran reported his symptoms began when he was in Vietnam when he had to kneel for prolonged period of time. The Veteran has also testified as to wear and tear on his knees from being on his hands and knees on pallets moving ammo rounds in bunkers. In view of this, the Board finds that the low threshold set forth in McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) is satisfied. As such, on remand, the Veteran should be afforded a VA examination to determine the nature and etiology of his knees. 2. Entitlement to service connection for right shoulder condition, left shoulder condition is remanded. In his November 2011 Statement in Support of Claim, the Veteran stated that he injured his shoulders when he was required to carry and throw artillery rounds in Vietnam. Further, VA treatment records show mild to moderate degenerative changes to the shoulders. As such, the Veteran should be afforded a VA examination on remand as the low threshold for obtaining an examination has been met. See McLendon, 20 Vet. App. at 81. 3. Entitlement to service connection for chronic lower back pain is remanded. Although there are no complaints in the Veteran's STRs regarding a low back disability, he contends he injured his low back when he fell off of a truck after an explosion while in Vietnam. He testified that his back was also injured when he had to crawl in bunkers to carry ammunition. He stated that he went to the medic and was given painkillers. Post service, the Veteran claims he went to a chiropractor and was told by a doctor to not put weight on his back. The Veteran claims he was diagnosed with midline disc protrusion, but the doctors are no longer around. VA treatment records in November 2018 show the Veteran had cervical spine surgery, but there is no treatment for the low back. However, the Veteran contends that he tries to avoid aggravating his back with weight and has to do back stretches. He also contends he was diagnosed with midline disc protrusion, but the records are not available. As such, the Veteran should be afforded a VA examination on remand as the low threshold for obtaining an examination has been met. See McLendon, 20 Vet. App. at 81. 4. Entitlement to service connection for bilateral hearing loss is remanded. The June 2013 VA examiner found that the Veteran's hearing loss was less likely than not caused by or a result of military noise exposure, but he also found that the Veteran's tinnitus was at least as likely as not a symptom associated with his hearing loss, and that his tinnitus was at least as likely as not caused by his military noise exposure. The Board finds the June 2013 VA medical opinion internally inconsistent. As such, remand is warranted for a clarifying opinion, in which the examiner provides an adequate rationale as to whether the Veteran's hearing loss was caused or aggravated by the military noise exposure to which his tinnitus was directly related. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Various statements from the Veteran and his family members that are associated with the file suggest the Veteran may not be able to secure or follow a substantially gainful occupation as a result of service connected disability, and particularly PTSD. Thus, the issue of entitlement to a TDIU has been raised and is within the jurisdiction of the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Additionally, the Veteran’s claim for TDIU benefits is inextricably intertwined with the claims remanded herein, and the outcome of this claim also may depend on the outcome of the other remanded claims. See Parker v. Brown, 7 Vet. App. 116 (1994). Therefore, upon remand the RO should make attempt to develop the Veteran's TDIU claim, including providing notice regarding the information and evidence necessary to substantiate a claim for a TDIU. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any additional relevant records he wishes considered regarding this appeal, which records should be sought. 2. Provide the Veteran an opportunity to submit a completed TDIU application form (VA Form 21-8940), as well as appropriate notice of the evidence necessary to substantiate a claim for TDIU benefits, and undertake any development deemed necessary with respect to the Veteran’s TDIU claim. 3. Thereafter, schedule the Veteran for VA examinations by the appropriate medical professionals to determine the nature and etiology of the Veteran's bilateral knee conditions, bilateral shoulder conditions, and low back condition. The entire claims file must be reviewed by the examiner. The examiner should provide opinions as to whether it as least a likely as not (a 50 percent or greater probability) that any identified condition pertaining to bilateral knee conditions, bilateral shoulder conditions, and low back condition had their onset during service or are otherwise due to an in-service disease or injury. A complete rationale should be provided for all opinions reached, which should include recognition of the Veteran’s reports regarding his pertinent joint injuries and subsequent symptoms. The examiner may assume the credibility of the lay statements for the limited purpose of conducting the examination and providing the medical opinion. 4. Schedule the Veteran for a VA examination by a qualified clinician to determine the nature and etiology of his bilateral hearing loss. Any indicated tests or studies should be accomplished. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed hearing loss had its onset in service, or is otherwise related to an in-service disease or injury. A complete rationale for any opinion expressed should be provided. A rationale consisting solely of the fact that a hearing loss was not shown in the service treatment records will not be sufficient. If it is significant that hearing loss was not shown in service, the reason that is significant must be explained. M. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, 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.