Citation Nr: 21011501 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-38 103 DATE: March 2, 2021 ORDER Entitlement to a rating of 70 percent, but no higher, prior to December 27, 2019, for posttraumatic stress disorder (PTSD), is granted. Entitlement to a rating in excess of 70 percent from December 27, 2019, for PTSD, is denied. REMANDED Entitlement to a rating in excess of 10 percent for achilles tendonitis of the left foot is remanded. Entitlement to a rating in excess of 10 percent for achilles tendonitis of the right foot is remanded. FINDINGS OF FACT 1. Prior to December 27, 2019, the Veteran’s PTSD was manifested by social and occupational impairment with deficiencies in most areas; it was not manifested by total social impairment. 2. From December 27, 2019, the Veteran’s PTSD was not manifested by total social impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for PTSD prior to December 27, 2019, 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. 2. The criteria for a disability rating in excess of 70 percent for PTSD from December 27, 2019, are not 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2003 to February 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran service connection for PTSD and assigned a disability rating of 30 percent prior to December 27, 2019, and 70 percent thereafter. The rating decision also granted service connection for bilateral achilles tendonitis and assigned a disability rating of 10 percent. A Board hearing was held in October 2018. A transcript is of record. In May 2019, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board instructed the AOJ to request that the Veteran provide or identify non-VA treatment records and then afford the Veteran new VA examinations. The AOJ provided an opportunity to the Veteran to identify non-VA treatment records in November 2019. See November 2019 subsequent development letter. The Veteran has not responded to this opportunity to provide these records or request assistance to obtain these records. Further, the Veteran was afforded new examinations in December 2019. See January 2020 VA examination report. The claims are back before the Board for further appellate proceedings. As to the claim for an increased rating for PTSD, the Board finds there has been substantial compliance with its remand directives, and the claim is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating 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. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). 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. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Here, the Veteran contends that his PTSD is more severe than his current disability rating would indicate. PTSD is rated under 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 own 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Where there is a question as to which of two ratings shall be applied, the higher rating 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. 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. 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. 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 solely on the basis of social impairment. 38 C.F.R. § 4.126. 1. Entitlement to a rating of 70 percent, but no higher, prior to December 27, 2019, for PTSD, is granted. Prior to December 27, 2019, VA treatment records, a VA examination report, and the Veteran’s lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating, and symptoms associated with a 100 percent rating. For the reasons that follow, the Board finds that the severity, frequency, and duration of the Veteran’s symptoms are more closely approximated by the 70 percent criteria. Prior to December 27, 2019, the Veteran reported the following symptoms, among others: difficulty falling and staying asleep, sleep walking, paranoia, hypervigilance, obsessional rituals that interfere with routine activities, intermittent auditory and visual hallucinations, impaired impulse control, and memory loss. See October 2009 VA examination report, June 2020 VA treatment records. While the Veteran endorsed audio and visual hallucinations, the record does not support that these hallucinations were persistent, in that they barred his ability to interact in a social or occupational setting, in an appropriate manner, or impaired his judgment. Indeed, at the time of each endorsement, the Veteran knew he was hallucinating without endorsing confusion. See June 2020 VA treatment records. Thus, the Veteran’s hallucinations do not rise to the level contemplated in the 100 percent criteria. The Veteran’s impaired impulse control consists of reckless behavior and unprovoked irritability with no reports of violence. Id. His impaired impulse control did not rise to the level of creating a persistent danger to hurting himself or others. Id. Indeed, he has consistently acknowledged his impulsive behavior and endorsed no intent or plan to harm himself or others based on this behavior. Id. The Veteran’s memory loss was described as forgetting the names of people he once knew and past events unless shown a picture as reference. Id. However, he has been able to remember his own name, the names of his family, and his own occupation. Id. Thus, his memory loss has not totally impaired his ability to interact socially or in an occupational setting. The Board notes that the Veteran’s PTSD was occasionally manifested by suicidal ideation, which is specifically contemplated in the 70 percent criteria and similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation did not rise to the level contemplated by a 100 percent disability rating. Indeed, the record does not illustrate a persistent danger of self-harm of a severity that totally impairs his ability to function socially or in an occupation. See June 2020 VA treatment records. The Board finds that the impairment caused by the Veteran’s symptoms are more closely approximated by the 70 percent criteria. Importantly, throughout the appeal period, the Veteran has had new social relationships, to include a new fiancé and girlfriend, and was able to obtain and retain employment despite endorsing stressful events therein. Though the Veteran has had several jobs in the appeal period covering over 11 years, he retained each job for a reasonable time and was able to obtain new employment fairly quickly. He often noted stressful events with his employment, but has consistently been able to work through those events in a productive manner. See June 2020 VA treatment records. However, his angry outbursts without physical aggression has made it difficult to “interface with customers.” Id. Thus, the Veteran’s occupational impairment is significant, but not total. As to the Veteran’s social impairment, the evidentiary record illustrates that the Veteran has had difficulty with customers, family, and romantic relationships. Id. He has social engagements to include an ex-wife, multiple romantic relationships, a new wife, and a vacation to Mexico. See June 2020 VA treatment records. Though he has difficulty in social situations, the record shows that he is capable of social interaction, to include resolving conflict. Thus, the Veteran’s social impairment is significant, but not total. As explained above, the Board finds that the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. 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. The Board has also considered whether staged ratings are appropriate. Since, however, the Veteran’s symptoms have remained constant at 70 percent levels for his PTSD, staged ratings are not warranted. Accordingly, the Board finds that the criteria for an increased disability rating of 70 percent, but no higher, prior to December 27, 2019, are met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § § 3.102. 2. Entitlement to a rating in excess of 70 percent from December 27, 2019, for PTSD, is denied. From December 27, 2019, the Veteran has maintained a significant, but not total, social and occupational impairment. VA treatment records, a VA examination report, and the Veteran’s lay statements continue to show that the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating and symptoms associated with a 100 percent rating. Preliminarily, the Board notes that the Veteran was diagnosed with TBI, or residuals, in his December 2019 VA examination. See January 2020 VA examination report. He is not service connected for TBI or its residuals. The examiner opined that it was possible to differentiate the impairments associated with PTSD from those associated with TBI. Id. In differentiating the impairments, the examiner merely said “50” percent, which does not provide the Board the appropriate detail to separate the effects of PTSD and TBI. Id. Treatment records show that despite consults and screenings from 2008 to 2020, the Veteran was never diagnosed with TBI or residuals. See June 2020 VA treatment records. Indeed, a treating physician opined that the Veteran’s symptoms are inconsistent for TBI and his current cognitive problems are more likely related to his service-connected PTSD. Id. Thus, affording the Veteran the benefit of the doubt, the Board finds that it is not possible to separate the psychiatric effects of PTSD from any diagnosed TBI or residuals. As such, the Veteran’s psychiatric symptoms are attributed to his service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Veteran’s symptomatology and impairment have remained consistent between November 2019 to December 2019. Indeed, the Veteran has stated his symptoms and impairment have remained the same since he was granted service connection for PTSD. See June 2020 VA treatment records. Relevantly and since December 27, 2019, the Veteran has also endorsed panic attacks that occur weekly or less as well as near continuous panic or depression affecting the ability to function independently, appropriately, and effectively. See January 2020 VA treatment report. However, despite these new symptoms, he has remained in his current employment as a truck driver, is still married to his current wife, and has regular social contacts to include his friends. Id. Thus, the Veteran’s impairment caused by his symptoms did not significantly change from December 27, 2019. The Board finds that the impairment caused by the Veteran’s symptoms are more closely approximated by the 70 percent criteria. Importantly, throughout the appeal period, the Veteran has maintained his relationship with his wife, retained his employment, and has endorsed regular social contacts to include friends. Thus, the Veteran’s psychiatric disability picture does not rise to the level of total social and occupational impairment. As explained above, the Board finds that the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. 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. The Board has also considered whether staged ratings are appropriate. Since, however, the Veteran’s symptoms have remained constant at 70 percent levels for her PTSD, staged ratings are not warranted. Accordingly, the Board finds that the criteria for an increased disability rating in excess of 70 percent from December 27, 2019, are not met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § § 3.102. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for achilles tendonitis of the left foot is remanded. 2. Entitlement to a rating in excess of 10 percent for achilles tendonitis of the right foot is remanded. In the May 2019 remand, the Board requested a VA examiner assess the current severity of the Veteran’s bilateral achilles tendonitis, to include a portrayal of any additional range of motion loss in active motion, passive motion, weight-bearing, non-weight-bearing, and flare-ups. Indeed, the Veteran’s disability is rated under Diagnostic Code 5024, which requires an evaluation based on the limitation of motion. Regrettably, the Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Though the Veteran was afforded a VA examination in January 2020, the examiner did not list the Veteran’s range of motion in terms of degrees or estimated any loss in range of motion in weight-bearing or non-weight-bearing. See January 2020 VA examination report. Significantly, the report noted that the Veteran’s foot injuries “chronically compromises weight-bearing” and noted that there was additional functional impairment during flare-ups and repetitive motion. Id. The examiner did not estimate any loss of range of motion as instructed. Id. The examiner did not explain why it was not possible to estimate any loss of range in motion due to these functional limitations. The Board finds that the examination does not substantially comply with the remand instructions and a new examination is required. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his bilateral achilles tendonitis that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development is completed, schedule the Veteran for an appropriate examination to determine the current nature and severity of his bilateral achilles tendonitis. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.