Citation Nr: 21014440 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-34 198 DATE: March 12, 2021 ORDER Entitlement to an initial increased disability rating in excess of 30 percent prior to December 6, 2018, and in excess of 50 percent thereafter, for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an initial increased disability rating in excess of 10 percent for osteoarthritis of the lumbar spine is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) as a result of service-connected disabilities is remanded. FINDINGS OF FACT 1. Prior to December 6, 2018, the Veteran’s service-connected PTSD has not been shown have been manifested by 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. 2. Since December 6, 2018, the Veteran’s service-connected PTSD is not shown to be manifested by symptomatology consistent with: 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. Prior to December 6, 2018, the criteria for an initial disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. From December 6, 2018, the criteria for an initial disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1990 to October 2011. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA). In November 2016, the Veteran was scheduled to appear at a Board hearing but failed to appear without a request for postponement or showing good cause. The request is deemed withdrawn and the Board may proceed with adjudication. 38 C.F.R. § 20.704 (d). The appeal was previously remanded in August 2018 for additional development. Such development was undertaken regarding the appeal of whether an increased disability rating was warranted for the Veteran’s service-connected PTSD, and the case is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an initial increased disability rating in excess of 30 percent prior to and in excess of 50 percent for PTSD Service connection was established for PTSD in a February 2012 rating decision and a 30 percent disability rating was assigned, effective November 1, 2011. In an August 2020 Decision Review Officer decision, the Veteran's evaluation for PTSD was increased to 50 percent disabling, effective December 6, 2018. In this case, the Board finds a staged rating for the Veteran's service-connected PTSD is appropriate and each period will be discussed in turn below. The Veteran's PTSD is rated under Diagnostic Code 9411. See 38 C.F.R. § 4.130. Pertinent to this case, a 30 percent evaluation contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversational normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation contemplates 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. Under Diagnostic Code 9411, a 70 percent evaluation is warranted where there is 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; intermittently illogical obscure, or irrelevant speech; 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. Id. A 100 percent evaluation is warranted where there is 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. Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to 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 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board will first address whether an evaluation in excess of 30 percent disabling is warranted for the Veteran's service-connected PTSD prior to December 6, 2018. The Veteran was afforded a VA examination in June 2011 where he reported experiencing intrusive recollections with traumatic events several times a week. He stated he had nightmares related to these events. He had difficulty staying asleep and required medication to a sleep at night. He had flashbacks of traumatic events but did not have auditory or visual hallucinations. The Veteran felt anxious when thinking of the events and avoided thinking about them. Since his return from Iraq, the Veteran stated he had less interest in activities he previously enjoyed and had some feelings of being detached from others. The Veteran’s wife reported that the Veteran had changed significantly as he had more difficulty with irritability, and was more quiet and withdrawn. The Veteran’s medication helped a little with irritability. He had difficulty with startling when he heard sudden noises. He was hypervigilant in crowds and experienced anxiety when he was in them. He was not suicidal. The Veteran denied impairments of his concentration and short-term memory. The Veteran stated he lived with his wife and two children. He was currently on active duty at the time of the VA examination and stated he was actively seeking employment for post-discharge from service. He was able to attend to all activities of daily living. A mental status examination revealed he was neatly groomed and appeared stated age. He was somewhat anxious during the interview but maintained appropriate eye contact. He did not exhibit any abnormal movements, his speech was normal in rate and tone, mood was anxious, affect was blunted, thoughts were logical and linear with no derailment, his concentration and short-term memory were intact, and insight and judgment were adequate. He was not suicidal and did not experience hallucinations. According to a May 2015 emergency department note, the Veteran stated he was with his friends the night prior and used recreational drugs and alcohol. He stated he felt suicidal because of unemployment and financial issues. He was married with two children. He denied homicidal and suicidal ideation but was willing to follow up with psychiatry. He was alert and oriented to person, time, and place and was not in distress. He also denied any hallucinations. A May 2015 VA social work note indicated the Veteran denied suicidal and homicidal ideation. He reported a history of vague suicidal ideation but denied plan or intent. He denied past attempts. His current stressors were unemployability, limited income, and marital issues. He described his wife and children as supportive. He reported depression and feeling hopeless. The Veteran denied hallucinations and did not appear to be responding to internal stimuli. He was cooperative and pleasant during the assessment. He was alert and oriented to person, time, and place and situation. The Veteran’s appearance was adequate; no abnormalities were noted in behavioral/psychomotor activity; speech was normal rate and note; cooperative; pleasant and calm; affect was of normal range; linear thought process; appropriate thought content; appropriate eye content; limited insight; memory appeared intact; concentration/attention was attentive; fair to poor impulse control; and limited judgment. A February 2016 VA treatment note revealed the Veteran reported depression, anxiety, and insomnia. He denied hallucinations and suicidal or homicidal ideation, plan or intent. The Veteran was alert and oriented to self, time and place; a depression screen was positive as the Veteran stated he felt little interest or pleasure in doing things; felt down, depressed, or hopeless; had trouble falling or staying asleep, or sleeping too much; and felt tired or having little energy nearly every day. A June 2017 VA mental health crisis note indicate the Veteran called the hotline due to his mental health/illness, and death of a family member/friend. The clinical impression and level of suicide risk as moderate to low without plan or intent. The Veteran reported that his lost four “battle buddies” to suicide in the last year and most recently a week ago. He explained that he struggled with PTSD and would like to be connected with a counselor before he got to a point where he was also contemplating suicide. He had thoughts of suicide in the past few months but denied current suicidal ideation or past attempts. Collectively, the aforementioned objective evidence reflects that the Veteran's PTSD symptoms have resulted in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversational normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). This is a level of occupational and social impairment consistent with the currently assigned 30 percent disability rating. Here, based on the review of the relevant evidence, the Veteran does not demonstrate the majority of the actual symptoms identified in the rating schedule as characteristic of at least the next higher, 50 percent, rating. The Board notes that the VA treatment records reflect that the Veteran's symptoms primarily consisted of depressed mood, irritability, anxiety, chronic sleep impairment. However, there was no indication that the Veteran's PTSD symptoms moderately compromised his ability to sustain social and work relationships. The VA examiner noted the Veteran had less interest in activities he previously enjoyed and had some feelings of being detached from others, although he was generally able to function satisfactorily with normal routine behavior, self-care and conversation. Further, the Veteran was able to maintain a relationship with his wife and children. He was alert and oriented; his thought process was intact and thought content was without psychotic material; and concentration, focus, and memory were adequate. There is no objective medical or other persuasive evidence suggesting that the Veteran has experienced the vast majority-and arguably, more serious-symptoms such 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, and difficulty in establishing and maintaining effective work and social relationships that are characteristic of the next higher, 50 percent, rating. Regarding suicidal ideation, the United States Court of Appeals for Veterans Claims (Court) in Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 ”indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.”). However, what is incumbent in this is that the suicidal ideation must be of such severity to impact social and occupational functioning, and in such a way to support the assigment of a higher rating. Here, while the Veteran reported having transient suicidal ideation (in May 2015), VA treatment records as a whole during the prescribed period of seven (7) years were overwhelmingly negative for any suicidal or homicidal ideation. On the June 2017 occasion where the Veteran called a crisis hotline, the Veteran stated he struggled with PTSD and that he would like be connected with a counselor before he got to a point where he contemplated suicide. He denied current suicidal ideation or past attempts and there was no suggestion that it impacted his functioning in a way to support a rating in excess of 30 percent. Under the circumstances of this case, the Board finds that the Veteran's PTSD symptomatology has not met or approximated the criteria for a 50 percent rating at any point prior to December 6, 2018. See 38 C.F.R. § 4.7. As the criteria for the next higher, 50 percent, rating are not met, it follows that the criteria for an even higher rating (70 or 100 percent) likewise are not met. The next question is whether an evaluation in excess of 50 percent disabling is warranted for the Veteran's service-connected PTSD from December 6, 2018. The Veteran was afforded a VA PTSD examination where a diagnosis of PTSD was confirmed. The Veteran’s level of occupational and social impairment was best summarized as 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. The Veteran stated he has been married for 25 years with two children who reside with him. He stated his home and family life was generally comprised of strain and conflict related to his mental health issues. He reported some social activities such as pool on Wednesday and occasional golf but still noted he was isolated and avoidant at times. The Veteran stated he was a full-time student at Midlands Tech for information technology and planned on graduating in the spring. He stated he was last employed two years ago at the Indian River Golf Club, before he started school. His longest period of employment has been selling cars for three years. The Veteran reported he took Celexa from 2011 to 2013 but denied other history of mental health services, including therapeutic, within the military, VA, or otherwise. The Veteran’s symptoms included depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships were moderate in severity. The VA examiner noted the Veteran presented as dysphoric and with a constructed affect. He was alert and orientation and did not have any disturbances in speech, thought, memory, concentration, and behavior. His insight and judgment were estimated as fair. He did not appear to pose any threat to danger or injury to self or others. In this case, while the Veteran's PTSD does cause occupational and social impairment, deficiencies in most areas have not been shown. With regards to work, while the Veteran's psychiatric disability does cause occupational impairment as indicated by the December 2018 VA examination, impairment warranting a 70 percent rating has not been shown. The Veteran's report to the December 2018 does not indicate he is unable to work as a result of his PTSD. Rather, the Veteran stated he was a full-time student and had a history of employment without evidence of ceasing employment due to his PTSD symptomatology. This does not show that the Veteran's PTSD symptomatology equates to work deficiency sufficient to support a 70 percent rating. With regards to family relations, the Board acknowledges the Veteran reported strain in his home and family life. However, he is also currently married and residing with his children. In addition, while he was noted to have been isolated and avoidant at times, he reported some social activities, such as playing pool on Wednesday and golf on occasion. Therefore, the evidence weighs against a finding of deficiencies in family relations equating to a 70 percent rating. Based on the evidence of record, the Board finds that the Veteran's PTSD is characterized by the following signs or symptoms: depressed mood; anxiety; sleep impairment; mild memory loss, disturbances in motivation and mood; and difficulty in establishing and maintain effective work and social relationships. The Board finds that these symptoms are similar to many of those contemplated by the currently assigned 50 percent rating. Therefore, throughout this appeal, symptoms indicative of a 70 percent rating such 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and the inability to establish and maintain effective relationships have not been shown or approximated. The Board acknowledges that the list of symptoms supporting a 70 percent rating is not exhaustive. See Mauerhan at 442-43. However, even when considering the actual symptoms shown during this appeal, the evidence fails to show occupational and social deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood for the reasons set forth above. Rather, the evidence indicates that the Veteran has 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. As such, the evidence supports a finding that the Veteran's actual PTSD symptomatology and resulting occupational and social impairment is adequately compensated for by the assigned 50 percent rating. Accordingly, and based on the evidence of record, the Board concludes that the totality of the evidence shows that from December 6, 2018, the criteria for a rating in excess of 50 percent for the Veteran's PTSD have not been met or approximated. REASONS FOR REMAND 1. Entitlement to an initial increased disability rating in excess of 10 percent for osteoarthritis of the lumbar spine is remanded. The Board finds there is a possibility that there are outstanding treatment records pertaining to the Veteran’s low back disability that are absent from the claims file. Specifically, according to a March 2016 VA treatment record, the Veteran stated he had a magnetic resonance imaging scan (MRI) performed a “few weeks ago, and that his doctor told him that there may be a potential fracture in his low back.” These records are not within the claims file. Additionally, and according to an August 2020 VA examination report, the Veteran stated that he had received chiropractic treatment [on his spine]. It is unclear whether the referenced chiropractor was a VA-affiliated or private but, nonetheless, these records are also absent from the claims file. As these outstanding records might contain clinical findings as to the severity of the Veteran’s lumbar spine, an attempt to obtain them must be made on remand. 2. TDIU is remanded. The Veteran asserts he is unemployable due to his service-connected disabilities. However, the Veteran's employment history is unclear. According to the December 2018 VA PTSD examination report, the Veteran indicated that he was a full-time student at Midlands Tech, and that he last worked two years previously at the Indian River Golf Club in maintenance. He also reported that his longest period of employment was selling cars for three (3) years, but this exact timeframe remains undetermined. VA examination reports and treatment prior to December 2018 indicate that the Veteran reported that he had been unable to find employment. In May 2015, the Veteran stated he was unemployed with a history in working in pest control and selling cars. He stated that he had not worked since December 2014. However, according to a March 2016 VA treatment record, the Veteran stated that he had retired four (4) years previously and he had begun performing construction-type work, but that he was unable to work secondary to pain in his low back and shoulders. The Board finds that the claim for a TDIU should be remanded to provide the Veteran with an opportunity to report the details of his work history in a VA Form 21-8940. The matter is REMANDED for the following action: 1. Contact the Veteran to identify any outstanding records of pertinent medical treatment from VA or private health care providers, specifically an MRI referred to in a March 2016 VA treatment record, and treatment from a chiropractor referred to in the August 2020 VA examination report. With the Veteran's assistance obtain copies of any pertinent records and associate them with the claims file. 2. The Veteran should also be requested to complete and return a Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940). Thereafter, take all appropriate action on the TDIU claim, to include obtaining any necessary examinations or opinions. Carole R. Kammel Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, 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. Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, 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.