Citation Nr: 21014636 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-28 685A DATE: March 15, 2021 ORDER Entitlement to an initial evaluation in excess of 50 percent, but no higher, for posttraumatic stress disorder (PTSD), from March 16, 2015, to May 16, 2016, is granted. Entitlement to an evaluation in excess of 50 percent for PTSD, from May 16, 2016, to July 12, 2018, is denied. Entitlement to an evaluation in excess of 70 percent for PTSD, since July 12, 2018, is denied. REMANDED Entitlement to service connection for allergic rhinitis and allergic sinusitis is remanded. Entitlement to service connection for hypertension, including secondary to service-connected PTSD, is remanded. Entitlement to service connection for chronic diarrhea (claimed as a stomach disorder), including secondary to service-connected PTSD, is remanded. Entitlement to service connection for migraines, including secondary to service-connected PTSD, is remanded. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU rating), prior to July 12, 2018, is remanded. FINDINGS OF FACT 1. Prior to July 12, 2018, the severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. Since July 12, 2018, the severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 50 percent, but no higher, for PTSD, from March 16, 2015, to May 16, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for an evaluation in excess of 50 percent for PTSD, from May 16, 2016, to July 12, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for an evaluation in excess of 70 percent for PTSD, since July 12, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 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 in the United States Army from February 1974 to October 1976. For his meritorious service, the Veteran was awarded (among other decorations) the National Defense Service Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. Increased Evaluation for PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that his service-connected PTSD, formerly characterized as generalized anxiety disorder with panic attacks, nightmare disorder, and unspecified depressive disorder, warrants an increased evaluation. The Veteran’s PTSD has been evaluated by the RO as 10 percent disabling, from March 16, 2015, to May 16, 2016; 50 percent disabling, from May 16, 2016, to July 12, 2018; and 70 percent disabling, since July 12, 2018. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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; or memory loss for names of close relatives, own occupation or own name. 1. Entitlement to an initial evaluation in excess of 10 percent for PTSD, from March 16, 2015, to May 16, 2016. 2. Entitlement to an evaluation in excess of 50 percent for PTSD, from May 16, 2016, to July 12, 2018. Based upon a longitudinal review of the record, the Board concludes that the Veteran’s PTSD symptoms, from May 16, 2015, to July 12, 2018, more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. Thus, an initial evaluation of 50 percent, but no higher, is warranted for his PTSD, from March 16, 2105, to May 16, 2016; and an evaluation in excess of 50 percent is not warranted for his PTSD at any time prior to July 12, 2018. In this case, the Veteran’s VA examinations and medical treatment records show that prior to July 12, 2018, his PTSD was manifested by anxiety, depressed mood, stress, panic attacks three or more times per week, nightmares, fatigue, difficulty sleeping, disturbances of motivation and mood, intermittent sadness and social isolation. The Veteran underwent a VA examination for PTSD in September 2015. The VA examiner reviewed the evidence of record, including the Veteran’s statements, prior to examination. The Veteran reported having a good relationship with his spouse, children, and siblings. The September 2015 VA examiner concluded that the Veteran’s mental disorder was best overall summarized as having been formally diagnosed, but with symptoms not severe enough either to interfere with occupational and social functioning or to required continuous medication. The Veteran underwent a VA examination for PTSD in May 2016. The VA examiner reviewed the evidence of record, including the Veteran’s statements, prior to examination. The Veteran indicated that he remained married, and described his marriage as pretty good. He also reported having a good relationship with his children, remaining in contact with some friends, and attending church weekly. The May 2016 VA examiner concluded that the Veteran’s mental disorder was best overall summarized as resulting in occupational and social impairment with reduced reliability and productivity. At his March 2020 video conference hearing before the Board, the Veteran and his spouse testified that there was little difference in the Veteran’s PTSD symptomatology throughout this entire time period. The Board finds that prior to July 12, 2018, the severity, frequency, and duration of the Veteran’s symptoms overall more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. At no point throughout this time period did the severity of this condition approximate symptoms such 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Accordingly, an initial evaluation of 50 percent, but no higher, is warranted for the Veteran’s PTSD, from March 16, 2015, to May 16, 2016. However, the preponderance of the evidence is against an evaluation in excess of 50 percent for his PTSD at any time prior to July 12, 2018. 3. Entitlement to an evaluation in excess of 70 percent for PTSD, since July 12, 2018. Based upon a longitudinal review of the record, the Board concludes that the Veteran’s PTSD symptoms since July 12, 2018, have not caused the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A 70 percent rating is assigned when symptoms such 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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; or memory loss for names of close relatives, own occupation or own name The Veteran underwent a VA examination for PTSD in May 2018. The VA examiner reviewed the evidence of record, including the Veteran’s statements, prior to examination. The examiner also examined the Veteran and also supported the opinions provided with a sufficient rationale. The examination report noted the Veteran’s symptoms of anxiety, depressed mood, suspiciousness, irritability, intrusive thoughts, difficulty sleeping, panic attacks roughly twice per week, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The report noted that he continues to go to church, but no longer leads classes or speaks to the group. The Veteran reported that his pastor is his best friend, and that he remains close to his children and his grandchildren. The Veteran also indicated that he avoids groups and crowds, but will attend football games. Overall, the VA examiner opined that his symptoms were best characterized as causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The symptoms which were reported are similar to those contemplated by the assigned 70 percent rating during this time frame. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating at any point since July 12, 2018. The criteria for a 100 percent or higher rating are not met during this period and the appeal must be denied. REASONS FOR REMAND 1. Entitlement to service connection for allergic rhinitis and allergic sinusitis is remanded. 2. Entitlement to service connection for hypertension, including secondary to service-connected PTSD, is remanded. 3. Entitlement to service connection for chronic diarrhea, claimed as a stomach disorder, including secondary to service-connected PTSD, is remanded. 4. Entitlement to service connection for migraines, including secondary to service-connected PTSD, is remanded. A review of the evidence of record revealed multiple medical treatment providers who may have relevant outstanding medical evidence in this matter. Specifically, the Veteran testified that he underwent annual physical examinations for his post-service employer. Moreover, a March 1983 post service treatment report referenced medical treatment having been received from Dr. A. Alcocer (tonsillectomy); Dr. G. Stoner; Dr. Cahill; Dr. Gold (cardiology consultation), and the Proctor Emergency Room in Peoria, Illinois (December 1982). An attempt to obtain these treatment records, with the required assistance by the Veteran, should be made. The Board also finds that the VA examinations and medical opinions obtained in September 2015 are not adequate, and new examinations and medical opinions must be obtained. Sometime after the September 2015 VA examinations, the Veteran submitted additional pertinent post service treatment records dating back to March 1983. These additional treatment records, along with any additional treatment records which can be obtained, must be considered by the VA examiners rendering etiological opinions herein. Specifically, the March 1983 private treatment report noted the Veteran’s history and diagnoses of hypertension and anxiety, enlarged cryptic tonsils, stomach problems with nervousness, and history of on and off headaches for a couple of years. Thus, the newly received medical evidence provides support for the Veteran’s contentions concerning ongoing symptoms relating to these conditions since his discharge form the servcie. The Board also notes that the etiological opinions addressing the Veteran’s allergic rhinitis and sinusitis and his migraines did not fully account for the in-service symptomatology found in the Veteran’s service treatment records regarding these conditions. Moreover, no opinion was obtained regarding the Veteran’s hypertension and its relationship to his service. Finally, the Veteran has claimed that his hypertension, migraines, and stomach disorder were caused or aggravated by his service-connected PTSD. Service connection on a secondary basis was not addressed by the September 2015 VA examiners. Under these circumstances, the Board cannot make a fully-informed decision on these issues without first obtaining full and complete medical opinions. 5. Entitlement to a TDIU rating, prior to July 12, 2018, is remanded. Although the RO has granted entitlement to a TDIU rating, effective July 12, 2018, the issue of entitlement to a TDIU rating, prior to July 12, 2018, remains in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). A decision on the remanded issues addressed above could significantly impact a decision on the Veteran’s claim of entitlement to a TDIU rating, prior to July 12, 2018. Accordingly, the issues are inextricably intertwined, and a remand of this issue is required. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his claimed disabilities since his discharge from the service. The Board is particularly interested in treatment records prior to March 1983 from the Veteran’s post-service employer, Caterpillar; and from Dr. A. Alcocer (tonsillectomy); Dr. G. Stoner; Dr. Cahill; Dr. Gold (cardiology consultation), and the Proctor Emergency Room in Peoria, Illinois (December 1982). After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for a VA examination for his allergic rhinitis and allergic sinusitis. The examiner must review the claims file. The examiner is asked to provide an opinion to the following for the Veteran’s allergic rhinitis, allergic sinusitis, and any other current sinus disability found: Is this condition at least as likely as not related to service, including his inservice treatment for rule out sinus headaches in July 1975; sinus discomfort for four weeks, diagnosed as sinusitis in February 1976; sinus discomfort in March 1976; sinus drainage for the past four weeks in April 1976; and history of ongoing sinus problems noted on his October 1976 separation examination. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. Schedule the Veteran for a VA examination for his hypertension. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran’s hypertension (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? If not, is the Veteran’s hypertension at least as likely as not proximately due to, or aggravated, i.e., worsened beyond its natural progression, by his service-connected PTSD, or medications used to treat this condition. Provide a rationale to support the opinion(s). The examiner must consider the Veteran’s inservice blood pressure readings, including 136/88 and 130/90 on July 7, 1975; 116/86 on April 8, 1976; and 132/92 on August 11, 1976. The examiner should also consider the Veteran’s history of hypertension noted in March 1983; and ten-year history of hypertension noted on a June 1988 treatment report. In providing the requested opinion, consider the Veteran’s description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 4. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the current nature and etiology of the Veteran's stomach disorder, diagnosed as chronic diarrhea. Based on a review of the entire record, including, but not limited to, the Veteran's reported history, the service treatment records and post-service treatment records, the examiner must address the following: The examiner must identify all current stomach disabilities found during the course of this appeal, including chronic diarrhea. For each stomach disability identified, is it at least as likely as not related to service, including the Veteran’s inservice complaints of and treatment for diarrhea on January 21, 1976; and stomach pain for the past month on April 8 and 9, 1976. The examiner should also consider his post service complaints of stomach pain, diarrhea, and irritable bowel syndrome, including his history of stomach problems when nervous noted on his March 1983 treatment report. If an identified stomach disability is not related to service, is it at least as likely as not proximately due to, or aggravated, i.e., worsened beyond its natural progression, by his service-connected PTSD, or medications used to treat this condition. In providing the requested opinions, consider the Veteran’s description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 5. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the current nature and etiology of the Veteran's migraine headaches, including migraine variants, and tension headaches. Based on a review of the entire record, including, but not limited to, the Veteran's reported history, the service treatment records and post-service treatment records, the examiner must address the following: Are the Veteran's migraine headaches and tension headaches at least as likely as not related to service, including his inservice complaints of and treatment for temporal headaches for three days, with an impression of headaches, possible migraine variant, on July 7, 1975; bilateral headaches for the past three days, diagnosed as possible migraine headaches by history on October 16, 1975; and headaches on January 21, 1976 and August 11, 1976. The examiner should also consider his post service complaints of migraines and headaches, including a history of on and off headaches for a couple years noted on his March 1983 private treatment report. If not, are the Veteran’s migraine, including migraine variants, and tension headaches at least as likely as not proximately due to, or aggravated, i.e., worsened beyond its natural progression, by his service-connected PTSD, or medications used to treat this condition. In providing the requested opinions, consider the Veteran’s description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? A complete rationale must be provided for all requested opinions. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Yates, 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.