Citation Nr: 21013818 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-52 858 DATE: March 10, 2021 ORDER For the period prior to July 30, 2019, an increased 70 percent rating for the Veteran's posttraumatic stress disorder (PTSD) is granted. Beginning July 30, 2019, a rating in excess of 70 percent for the Veteran’s PTSD is denied. VETERAN’S CONTENTIONS For the period prior to July 30, 2019, the Veteran contends that he is entitled to an increased rating for his PTSD. See October 2014 Notice of Disagreement. In support of his argument asserting entitlement to a higher rating, the Veteran reported that he experienced anger, chronic sleep problems, depression, panic attacks, flashbacks, lack of self-esteem, and even isolation. See January 2019 VA 21-4138 Statement In Support of Claim. Id. The Veteran also reported being worried about everything and that he had a hard time getting along with others. See May 2019 VA Mental Health Consultation. The Veteran also contends that he should be service connected for gastroesophageal reflux disease (GERD) as secondary to his PTSD. See May 2015 Correspondence. Specifically, the Veteran contends that the VA examiners erred by finding that GERD and PTSD are not associated medical conditions. Id. The Veteran also contends that his GERD disability is related to his PTSD medications or aggravated by his PTSD medications. See May 2015 Notice of Disagreement. REMANDED Entitlement to service connection for the Veteran's GERD disability, to include as secondary to PTSD, is remanded. FINDINGS OF FACT 1. The Veteran’s PTSD is productive of deficiencies in the areas of family relations, judgment, thinking, school, and mood. 2. The Veteran reported that he has been married twice. See July 2014 VA Examination. After five years of marriage, the Veteran stated that his first marriage ended. Id. The Veteran stated that he remarried in 1982, and he and his wife have one daughter. Id. The Veteran stated that he was very close to his siblings. Id. However, the Veteran stated that after he returned from service, he began to experience nightmares, and that he has hit his wife while experiencing nightmare. Id. He reported that he has hit her while sleeping many times over the years. Id. The Veteran reported that he had nightmares once a week. Id. 3. The Veteran additionally endorsed irritable behavior, exaggerated startle response, and hypervigilance. See July 2014 VA Examination. The Veteran also reported that he felt that he was constantly on guard, felt numb, and tried hard not to think of Vietnam. See November 2016 VA Treatment Record. The Veteran also stated that on several days he had little interest in doing things. Id. 4. The Veteran additionally reported problems with concentration, difficulties with making decisions, and problems with communication. See January 2019 VA 21-4138 Statement in Support of Claim. The Veteran stated that he experienced nightmares and reported that he slept three to four hours per night. See July 2014 VA Examination. The Veteran also reported that he experienced flashbacks once a week and panic attacks once a month. Id. 5. The Veteran also reported that he attended community college in 2013 but dropped out due to it being difficult. See July 2014 VA Examination. 6. The Veteran reported that he experienced depression, anxiety, a sense of helplessness, suspiciousness, and that he was unable to share his feelings. See July 2014 VA Examination; see also, January 2019 VA 21-4138 Statement in Support of Claim. 7. The July 2014 examiner reported that the Veteran’s PTSD symptoms included a depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The July 2014 examiner also opined that the Veteran experienced flashbacks and intrusive thoughts that caused psychological and physiological distress. The examiner also reported that the Veteran displayed avoidance behavior and had negative alterations in mood, cognition, in arousal, and reactivity associated with his trauma. CONCLUSIONS OF LAW 1. Beginning May 13, 2013, the criteria for an increased rating of 70 percent for the Veteran’s PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.130, Diagnostic Code 9411. 2. Beginning July 30, 2019, the criteria for increased rating of 100 percent for the Veteran’s PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1970 to April 1972. This matter comes before the Board of Veteran’s Appeal (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board granted an increase rating to 50 percent for the Veteran’s PTSD prior to July 30, 2019 and 70 percent effective July 30, 2019. The Board also denied service connection for the Veteran’s GERD disability. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Veteran and VA’s Office of General Counsel filed a Joint Motion for Remand (JMR) requesting that the Court vacate the Board’s decision and remand the case for readjudication. The Court granted the JMR and returned the case to the Board for further development and readjudication in compliance with the directives specified. The Veteran seeks an increased rating for his PTSD prior to July 30, 2019 and seeks service connection for his GERD disability, as secondary to his PTSD. 1. For the period prior to July 30, 2019, an increased 70 percent for the Veteran's posttraumatic stress disorder (PTSD) is granted. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 (2009). By way of history, from May 13, 2013 to July 29, 2019, the Veteran’s PTSD disorder is rated as 50 percent disabling and beginning July 30, 3019 it is rated as 70 percent disabling under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411. The relevant rating criteria are set forth below.   Under the general rating formula for mental disorders, a 50 percent rating is assigned 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.   A 70 percent rating is assigned 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 worklike setting); inability to establish and maintain effective relationships.   A 100 percent rating is assigned 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.   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 social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b).   Here, the July 2014 VA examiner concluded that the Veteran’s PTSD symptoms caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, but that determination is not binding on the Board. As previously detailed in the Findings of Fact section, the Veteran’s PTSD disorder results in irritability, an impairment in his family relationships, chronic sleep impairment, and a depressed mood. See July 2014 VA Examination. When evaluating the medical evidence of record coupled with the Veteran’s lay statements, the Board finds that the record demonstrates that the Veteran’s PTSD is more severe than as determined by the VA examiner, as it impairs his family relations, his mood, his thinking, in school, and his judgment. Therefore, the Board finds that an increased 70 percent rating is warranted. In support of this determination, the Board references post-service treatment records, the VA examinations, and the Veteran’s lay statements which show that his PTSD is productive of symptoms associated with a 70 percent rating. See July 2014 VA Examination and November 2016 VA Treatment Record. Specifically, the Veteran reported that he has hit his wife several times over the years while he experienced nightmares. See July 2014 VA Examination. More significantly, however, the Veteran reported frequently being angry, having low self-esteem, having difficulty getting along with others, being irritable frequently, having difficulty communicating, and being unable to share his feelings. There is no evidence suggesting that his wife and other family members were spared the effects of these difficulties, and as such the Board finds that the Veteran experiences impairment in his family relations as a result of his PTSD. Turning next to the area of school, the Veteran reported that he attended community college in 2013 but found it to be difficult and dropped out. As the Veteran reported issues with concentration and memory, and had to quit school, the Board finds that the Veteran experiences impairment in the area of school as a result of his PTSD. Further, the Veteran also had symptoms that are not listed with a specific rating, specifically, sleep disturbances.  The Board finds that the severity, frequency, and duration of the Veteran’s unlisted symptom of sleep disturbances more closely approximate the symptoms contemplated by a 70 percent rating, which correlate to sleep disturbances that are more severe, more frequent, and longer in duration.  During his July 2014 VA examination, the Veteran stated that he averaged three to four hours of sleep per night and he stated that he has nightmares. In sum, the Veteran’s unlisted symptom of sleep disturbances are similar in severity and frequency to those symptoms contemplated by a 70 percent rating. Although the Board finds that the Veteran has an impairment in school, the Board finds that the Veteran does not experience work impairment for the period prior to July 30, 2019. Specifically, the Veteran was able to obtain and maintain several jobs over the years. See July 2014 VA Examination. The Veteran did not report any confrontations with coworkers or supervisors. Id. The Veteran was fired once, but he reported that it was because he did not show up to work because he needed to get a new driver’s license. Id. Further, the Veteran was laid off from multiple jobs, but there was no indication that this was due to his PTSD symptoms. Further, the Board acknowledges that the Veteran did report that he was unemployed for four and a half years, but it is unclear if this was due to the recession or the Veteran’s PTSD symptoms. Additionally, although the Board finds that a 70 percent rating is warranted, it also finds that the next-higher rating of 100 percent is not warranted. In support of this determination, the Board finds that the Veteran’s PTSD disorder is not productive of total social impairment as contemplated by the criteria for a 100 percent rating. Here, the Veteran still maintains relationships with his childhood friends and military friends. See July 2014 VA Examination. Although the Veteran experiences impairment in most areas as contemplated by the regulation, the Board cannot find that his condition is productive of total social impairment, in line with an even higher 100 percent rating.  Further, the medical evidence or record does not reflect, nor has the Veteran reported, gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, extreme memory loss, or an intermittent inability to perform activities of daily living.  As such, a higher 100 percent rating for the Veteran’s PTSD is not warranted. Based on the foregoing, the Board finds that the severity of the Veteran’s PTSD disorder symptoms warrants a 70 percent evaluation effective May 13, 2013, but no higher. See 38 C.F.R. § 4.7.  2. Beginning July 30, 2019, a rating in excess of 70 percent for the Veteran’s PTSD is denied. Additionally, the Board finds that the Veteran is not entitled to a 100 percent rating beginning July 30, 2019. The Board finds that the Veteran has deficiencies in the areas of family relations, school, thinking, judgment, and mood during this period, but that such are not productive of both total occupational and social impairment. Here, the Veteran reported that he had a few friends and socializes with his family and grandchild. See July 2019 VA Examination. Although the Veteran reported feeling isolated, he reported that he sometimes wanted to out, but did not want his wife to become upset. Id. The Veteran also reported that he goes fishing by himself, which indicates that he still has some interest in things. Id. That the Veteran continues to have some meaningful social relationships and engages in recreational activities like fishing reflects that he is not totally socially impaired. Further, the medical evidence of record does not reflect, nor has the Veteran reported, gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, extreme memory loss, or an intermittent inability to perform activities of daily living, or other symptoms of similar severity, frequency, or duration in line with an increased 100 percent rating.  As such, a higher 100 percent rating for the Veteran’s PTSD is not warranted. Based on the foregoing, the Board finds that the severity of the Veteran’s PTSD symptoms does not warrant a 100 percent evaluation. See 38 C.F.R. § 4.7.  REASONS FOR REMAND Entitlement to service connection for the Veteran's gastroesophageal reflux disease (GERD), to include as secondary to PTSD, is remanded is remanded. After reviewing the evidence of record the Board finds that, unfortunately, there has not been substantial compliance with the Board's January 2019 remand directives. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in its January 2019 remand, the Board noted that the April 2015 VA examination was inadequate because the examiner failed to provide an opinion regarding whether the Veteran’s PTSD aggravates his GERD. On remand, a July 2019 VA examiner generally listed the symptoms, causes, and risks factors associated with GERD to support the finding that there is no medical evidence that PTSD causes or aggravates GERD. However, the Board finds that the July 2019 VA examination is inadequate because the examiner only offered a conclusion without providing specific rationale to support why the Veteran’s GERD was not aggravated by the Veteran’s PTSD. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). As the opinion obtained on remand is inadequate, the Board finds that a VA addendum opinion is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The VA addendum opinion should comment on whether the Veteran’s PTSD was caused by or aggravated by the Veteran’s GERD. See October 2014 VA Treatment Record. The examiner should specifically address the Veteran’s contention that there is a relationship between GERD and PTSD. See October 2019 Correspondence. The examiner should also consider the July 2014 VA examiner’s finding that the Veteran’s flashbacks and intrusive thoughts causes psychological and physiological distress to determine if the physiological distress aggravates the Veteran’s GERD. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran’s lay reports.  Rather, the Board is merely requesting that the examiner on remand consider the Veteran’s own descriptions of the history of his GERD disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding VA treatment records and private medical records relevant to the Veteran’s claims. 2. After all outstanding records have been associated with the claims file, send the claims to the appropriate clinician. The record and a copy of this Remand must be made available to the examiner. If the clinician determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. Following a review of the entire record, to include the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of is current symptomatology, the examiner should opine as to the following: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s GERD is due to his service-connected PTSD, to include any medications taken for his PTSD. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s GERD is aggravated by his service-connected PTSD, to include any medications taken for his PTSD. In providing a response, the examiner should address whether there is a relationship between the Veteran’s GERD and PTSD, as asserted by the Veteran. See October 2019 Correspondence. The examiner should also consider the July 2014 VA examiner’s finding that the Veteran’s flashbacks and intrusive thoughts causes psychological and physiological distress to determine if the physiological distress aggravates the Veteran’s GERD. (c.) If the Veteran’s GERD is NOT due to or aggravated by his service-connected PTSD, whether it is at least as likely as not (50 percent probability or more) that the Veteran’s GERD is related to his period of active duty service. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.Foster 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.