Citation Nr: 21015535 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-54 203 DATE: March 17, 2021 ORDER Entitlement to an effective date of May 19, 2015, for the award of a 100 percent rating for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) is granted. REMANDED Entitlement to service connection for a low back disorder is remanded. FINDING OF FACT The evidence is at least in equipoise that the Veteran’s service-connected psychiatric disorder was productive of total occupational and social impairment on May 19, 2015. CONCLUSION OF LAW The criteria for entitlement to an effective date of May 19, 2015, for the award of a 100 percent rating for PTSD with MDD have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.3, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to August 1971. He served honorably in the U.S. Army, including service in the Republic of Vietnam during the Vietnam era. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board videoconference hearing in January 2020. A transcript of the hearing is of record. In December 2020, the Veteran submitted additional medical evidence, which will be discussed in greater detail below. Entitlement to an effective date of May 19, 2015, for the award of a 100 percent rating for PTSD with MDD is granted. The Veteran contends that an effective date prior to July 20, 2015 is warranted; specifically, he confirmed at his hearing that he would be satisfied with a January 2015 effective date, the date of his increased rating claim. Accordingly, the Board will examine whether an effective date prior to July 20, 2015, is warranted. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). In this case, service connection for PTSD was granted with an evaluation of 70 percent, effective May 27, 2011, in a February 2012 rating decision. The Veteran did not disagree with the assigned rating in the time provided by regulation, nor was new and material evidence received within one year of the February 2014 notification letter. As such, the rating decision became final. The Veteran filed an increased rating claim for PTSD which was received on January 13, 2015. The claim was denied in a June 2015 rating decision; however, new and material evidence was received within a year of that decision, to include a July 20, 2015 TDIU claim wherein the Veteran reported that he had stopped working in May 2015. 38 C.F.R. § 3.156(b). PTSD was rated 100 percent disabling in an October 2015 rating decision effective from the July 20, 2015 date of the TDIU claim. The Board finds that the appeal period began with the January 13, 2015 claim for increase for PTSD. Therefore, January 13, 2015, is the date of receipt of the claim in this case. PTSD is rated by applying the criteria in 38 C.F.R. § 4.130, DC 9411. The VA Schedule rating formula for mental disorders reads in pertinent part as follows: 100 percent rating (the maximum scheduler rating) - 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. In this case, in October 2015, the Veteran’s former employer reported that the Veteran had last worked on May 18, 2015. The former employer noted the Veteran had worked as an employee for that company for 5 years; had earned over $36,000 in the 12 months preceding the last date of employment; and had worked 8 hours a day, 40 hours a week. As such, the Board cannot find that the Veteran had total occupational impairment prior to May 19, 2015, as he was working a full-time job for a number of years prior to that time. Given these facts, the criteria for a 100 percent schedular rating were not met or approximated prior to May 19, 2015. In a May 2015 mental health note, the Veteran complained that he was “unstable.” The provider noted symptoms of depression including mild hopelessness, moderate insomnia, severely decreased concentration, and severe demonstrated psychomotor retardation. He reported no recent suicidal or homicidal ideation. The provider noted that his mood was paranoid and his affect was flat, that he had audial hallucinations, and that he had thoughts of suicide but no current plans. Otherwise, the mental status examination was unremarkable. The provider, the chief of behavioral medicine service, rendered diagnoses of cocaine dependence; recurrent major depression; PTSD; psychiatric disorder, NOS; and insomnia. Mental status evaluations through July 2015 were generally unremarkable. In an August 2015 letter, the Veteran’s VA treatment provider stated that the provider had treated the Veteran since May 2008, periodically meeting for individual therapy and case management. The provider noted that the Veteran reported a long history of distant and difficult relationships with family, friends, and coworkers. The provider noted that the Veteran’s history of difficulty with attention and concentration were evident during their meetings. The Veteran reported chronic depressive symptoms, including frequent thoughts of death or thoughts of hurting others and the provider noted that he experiences visual and auditory hallucinations, that he often struggled with performing activities of daily living, and that he displays significant memory difficulties. The provider also noted that the Veteran reported “that PTSD symptoms as well as his service connected medical condition led him to retire earlier than he wanted to.” In an August 2015 VA examination report, the Veteran reported attempting suicide on Veteran’s Day the year before but that friends intervened. He reported that he continued having suicidal ideation but denied current intent. He denied current homicidal ideation but admitted to past thoughts. The examiner rendered diagnoses of PTSD and MDD, recurrent, severe with psychotic features. The examiner stated that the diagnosis was changed and was a progression of the previous diagnosis as the Veteran had developed major depressive disorder, recurrent severe with psychotic features, which represented a significant worsening of his symptoms from his last assessment several months ago. The examiner stated that the Veteran’s PTSD remained unchanged; however, the development of MDD was a significant progression and represented the worsening of his symptoms from his last assessment several months before. The examiner noted symptoms of depressed mood; anxiety; suspiciousness; near-continuous panic or depression; chronic sleep impairment; impairment of short- and long-term memory; flattened affect; speech intermittently illogical, obscure, or irrelevant; disturbances of motivation and mood; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; suicidal ideation; and persistent delusions or hallucinations. The examiner noted that he presented as answering all questions asked in an apparent honest and credible manner. Speech was noted to be slowed in rate, rhythm, and tone, and he mumbled at times. Facial expressions were noted as inconsistent with content. Thought processes were noted as marginally linear and logical. His grooming was noted to be poor. The examiner concluded that he was capable of managing his own financial affairs and concluded that the disability manifested in total occupational and social impairment. The Board finds that the evidence is at least in equipoise that the Veteran’s psychiatric disability was productive of total occupational and social impairment as of May 19, 2015. In so finding, the Board finds the Veteran’s reports to his treatment provider that he retired earlier than he wanted to due in part to his PTSD and the assessment of the August 2015 VA examiner that the Veteran’s mental health symptomatology had worsened in recent months to be reasonably consistent with a finding that the Veteran’s PTSD resulted in total social and occupational impairment as of May 19, 2015. Based upon this evidence, resolving any reasonable doubts in the Veteran’s favor, the Board finds that the evidence is at least in equipoise that the Veteran’s psychiatric disability was productive of total occupational and social impairment as of May 19, 2015. Accordingly, an effective date of May 19, 2015 for the 100 percent disability rating is warranted. REASONS FOR REMAND Entitlement to service connection for a low back disorder is remanded. A remand is warranted as an addendum opinion is necessary. In a June 2015 VA opinion, the clinician concluded that the Veteran’s lumbar spine degenerative joint disease is less likely than not related to his service-connected knee disabilities. Noting the absence of unstable knee joints in an April 2012 VA examination report, the clinician stated that the Veteran’s service-connected bilateral knee disability would not have resulted in an anatomical shift of weight (due to a favoring of the affected extremity) to the lumbar spine so as to cause an extra weight burden, stressing the lumbar spine site so as to result in chronic wear and tear of the area. The clinician also concluded that, as the Veteran had biomechanically stable knee joints, one would not expect falling episodes to occur so as to injure the lumbar spine. However, the clinician did not address possible weight shifts or notations of fall or risk of falls not due to instability which might nevertheless be associated with the knee. The Board observes that in November 2009 the Veteran complained of both knees buckling and reported stiffness, swelling, and locking in a September 2011 VA examination report. In the April 2012 VA examination report, he reported pain and locking that would cause him to lose balance and almost fall. In June 2012, he again complained of his knees buckling and requested a cane with bilateral knee braces; afterward, there were multiple notations of ambulation with a cane and antalgic gait. In August 2013, a VA provider noted under his history, “gait abnormality” and “frequent falls” which appeared to be attributed to loss of balance and his knees locking up. Further, in an August 2020 letter associated with the record in December 2020, a treatment provider concluded that the Veteran had a leg length discrepancy as a result of his knee surgeries and that the Veteran’s back pain was likely a byproduct of the leg length discrepancy. However, the provider appears to have based the conclusion on the appearance of low back pain after the Veteran’s 2004 right knee surgery; back pain was noted in September 1968 and the Veteran himself reported that his low back pain started in 1975 and worsened in 1980. Nevertheless, as there is an indication that back pain may be related to a leg length discrepancy resulting from the service-connected knee disabilities, an addendum opinion is warranted. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disability on appeal. Please ask the Veteran to provide the releases necessary for VA to secure private treatment records. 2. After the action requested in paragraph 1 is complete, please refer the claim to an appropriate clinician for an opinion as to the nature and etiology of the Veteran’s low back disorders. The Veteran’s claims-file must be made available to and reviewed by the clinician. The clinician is requested to identify all low back disorders current during the period on appeal, including lumbar myofascial strain, lumbar spine degenerative joint disease, and L3/L4 anterior compression deformity. The clinician is requested to opine as to the following: Specifically, with respect to lumbar spine degenerative joint disease: (a.) Is the Veteran’s lumbar spine degenerative joint disease at least as likely as not (a 50 percent or greater probability) caused by one or both of the Veteran’s service-connected knee disorders? (b.) Is the Veteran’s lumbar spine degenerative joint disease at least as likely as not (a 50 percent or greater probability) aggravated by one or both of the Veteran’s service-connected knee disorders? The clinician is requested to consider whether the Veteran had, associated with the service-connected knee disabilities, 1) an anatomical shift of weight to the lumbar spine so as to cause an extra weight burden; or 2) falling episodes so as to injure the spine. The clinician is requested to consider and address as appropriate the following: • A November 3, 2009 note in which the Veteran complained of both knees buckling; • A September 1, 2011 C&P exam in which the Veteran reported weakness, swelling, giving way, and locking; • June 13, 2012 and June 21, 2012 notes in which the Veteran complained of knees locking up when walking and knees buckling; • An August 20, 2013 rheumatology note noting “gait abnormality” and “frequent falls Lost his balance, knees locked up”; • Notations of antalgic gait with ambulation with a cane. For all identified lower back disorders: (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has a leg length discrepancy resulting from his knee surgeries or otherwise associated with his service-connected knee disabilities? (d.) If the answer to (c) above is yes, is the low back disorder at least as likely as not (a 50 percent or greater probability) caused by the leg length discrepancy? (e.) If the answer to (c) above is yes, is the low back disorder at least as likely as not (a 50 percent or greater probability) aggravated (any increase in disability) by the leg length discrepancy? The clinician is requested to consider and discuss the August 12, 2020 private letter (associated with the record on December 24, 2020, which references a medical study. ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.