Citation Nr: 21013075 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-42 167 DATE: March 8, 2021 ORDER Entitlement to service connection for cervical spine arthritis is granted. Entitlement to service connection for lumbar degenerative disc disease (DDD) is granted. Entitlement to an initial increased evaluation of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran’s cervical spine arthritis is etiologically related to his military service. 2. The Veteran’s lumbar DDD is etiologically related to his military service. 3. Throughout the appeal period, the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas, but it has not more nearly approximated total occupational and social impairment at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cervical spine arthritis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for lumbar DDD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to an initial evaluation of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. INTRODUCTION The Veteran served on active duty in the Army from June 1973 to June 1993. These matters come before the Board of Veterans’ Appeals (Board) from January 2017 and March 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). A November 2018 Board decision was subsequently appealed to the United States Court of Appeals for Veteran's Claims (CAVC). In July 2020, CAVC vacated the Board decision and remanded it for readjudication. LEGAL CRITERIA Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2019). 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 (2019). 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 (2019). 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 (2019). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Cervical Spine Arthritis and Lumbar DDD The Veteran contends that his cervical spine arthritis and lumbar DDD are due to service. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). An April 2016 VA opinion showed a current diagnosis of cervical spine arthritis and lumber DDD. According to the examiner, the Veteran’s over 16 years combined parachute jumping conducted while in service at least as likely as not contributed or aggravated to his present disabilities. The Veteran’s Service Treatment Records (STRs) confirm reports of back pain and neck strains while in service due to various causes, including athletics. Additionally, his personnel records confirm he earned the parachutist badge while in service. The evidence against the claim includes a September 2016 VA opinion. It concludes that the Veteran’s disabilities are due to the normal wear and tear of the spine from aging, and that there were no reports of chronicity about the Veteran’s disabilities while in service, though the Veteran did report swollen painful joints at his exit examination. The examiner notes that weight gain likely contributed to the Veteran’s current disabilities. Additionally, she stated that there is no evidence in the record about the disabilities from the time he left service until fifteen years later. Comparing the September 2016 opinion to the April 2014 opinion, the Board finds that the April 2014 opinion should be afforded more weight. The September 2016 examiner noted the Veteran’s disabilities are diseases “of aging”, the result of “repeated daily stresses on the spine and occasional minor, unnoticed injuries, as well as major ones,” taking their toll over time. However, the examiner failed to explain why the Veteran’s in-service injuries did not contribute to this general degeneration compared to the unknown ones she vaguely cites to. As such, the September 2016 examination is afforded less probative weight. Considering all the probative evidence of record, the Board concludes that the weight of evidence favors a finding of entitlement to service connection. Because the preponderance of evidence weighs in favor of entitlement to service connection, the benefit of the doubt doctrine is inapplicable. The claims for cervical spine arthritis and lumbar DDD are granted. Increased Rating for PTSD The Veteran seeks a higher rating than 30 percent for his service-connected PTSD. PTSD is rated under the General Rating Formula for Mental Disorders. In pertinent part, it provides the following: 70 percent: 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. 100 percent: 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. Critically, the Board observes that the rating criteria for a 70 percent rating 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. 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 carefully reviewed the Veteran's 2016 private treatment reports from Dr. H.J.. The Board also thoroughly reviewed the results of the VA examination conducted in October 2016. Further, the Board prudently considered the Veteran's own statements. To qualify for a 100 percent rating, the Veteran must show “total occupational and social impairment” due to the enumerated factors, among others. According to both the Veteran’s private and VA examiners, his thought process is intact, though he may change his mind frequently if tasked with making a decision. He does not suffer from delusions or hallucinations, exhibit grossly inappropriate behavior, is not disoriented to time and place, nor suffers memory loss of things like his close relative’s names, his occupation, or own name. However, he is noted to have short-term memory issues, notably problems remembering important dates and events. As most recently reported, he was not noted to be in persist danger of hurting himself or others. Additionally, he is described from the examiner’s observations at the time of the interviews as maintaining his personal hygiene. While he certainly shows concerning deficiencies in several areas, all together these do not amount to total impairment. After a review of the record, the Board finds that a 70 percent rating more nearly approximates the Veteran’s PTSD symptoms. Importantly, the Veteran has a history of suicidal thoughts. The Board notes that suicidal ideation is a serious symptom. See Bankhead, v. Shulkin, 29 Vet. App. 10, 19. In Bankhead, the Court indicated that the Board must consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating. Further, the Court held that the presence of suicidal ideation alone might cause occupational and social impairment with deficiencies in most areas. In the Fall of 2015, the Veteran reported suicidal thoughts to his private examiner due to depression for no particular reason. Moreover, in a May 2016 private treatment record the Veteran noted experiencing suicidal ideations in the past and stated that the last time he thought about suicide was 8 months ago. Prior to that, the Veteran noted some suicidal thoughts following discharge from service in the 1990’s due to difficulties adapting. While he did not report current thoughts of suicide in the most recent records, the Veteran has expressed a lack of care for death, considering it a relief. Other symptoms the Veteran noted or his examiners found include being moody, issues with flashbacks when exposed to triggers or stress, anxiety, restlessness, avoidance behaviors, psychomotor retardation, hyperarousal, a general mistrust in people and need to assess the security of wherever he is, problems keeping his house tidy, discomfort around crowds, sleep difficulties and insomnia, irritation from working with civilians at work, and feeling emotionally numb and unable to love those close to him. On the other hand, he reports that he is able to focus and concentrate well at work and has consistently worked as a nurse at a hospital for over twenty years. While he had past alcohol abuse issues, he is in control of them and has not abused it for years. (Continued on the next page)   Reviewing the numerous symptoms compared to the criteria listed in the Rating Schedule, the Veteran’s symptoms most approximately align with a 70 percent rating. He exhibits occupational and social impairment, with deficiencies in most areas, notably with family relations, thinking, and mood. However, he does not seem to exhibit deficiencies at work or in judgment due do his symptoms. The main difficulty he noted he has at work relates to irritability with civilians being unable to follow instructions, though he said he has control of those feeling. Regarding judgement, he notes changing his mind frequently when tasked to make a decision, but not any problem coming to a correct decision. Even though he had problems keeping his home tidy, he is able to maintain his personal appearance and hygiene without assistance. He does not have any obsessive rituals that interfere with daily activities or note an inability to perform them. There are no indications in the record that the feelings of depression the Veteran reported affect his ability to generally function independently, appropriately, and effectively. Importantly, he does not suffer from delusions or hallucinations. Put together, he does not have total occupational and social impairment, but rather deficiencies in most, though not all areas. Based on the foregoing, the Board determines that a 70 percent rating is warranted for the Veteran's PTSD throughout the period on appeal. However, the preponderance of the evidence is against the assignment of a higher, 100 percent, rating. 38 C.F.R. § 3.102. Therefore, the Veteran’s claim for an increased rating of 70 percent, but not higher, is granted. J. TUNIS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rob Schwartz, 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.