Citation Nr: 21015775 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-15 381 DATE: March 18, 2021 ORDER An initial rating of 50 percent for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT The Veteran's PTSD has caused no more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating of 50 percent for PTSD have been more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1982 to May 1992. This matter comes before the Board of Veterans’ Appeals (Board), on appeal from an October 2013 and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The October 2013 rating decision denied service connection for a low back disability and the November 2015 rating decision granted service connection for PTSD at 30 percent disabling, effective June 19, 2015. The Board previously considered this appeal in October 2018 and remanded this issue for further development including scheduling VA examinations. The case returned to the Board for further appellate review. Increase Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained 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 the residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § § 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. See 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991); 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the severity of a disability, the Board is required to consider the potential application of various other VA regulations, regardless of whether they were raised by the Veteran, as well as the entire history of the Veteran's disability. See 38 C.F.R. § § 4.1, 4.2; see also Schafrath, 1 Vet. App. at 595. Separate evaluations may be assigned for separate periods of time, or staged, where factual findings show distinct time periods during which the Veteran's disability exhibits symptoms that warrant the application of different ratings. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). However, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Once the evidence has been assembled in the record, the Board shall consider all competent lay and medical evidence of record, analyze the credibility and probative value of the evidence, and provide reasons for rejecting any favorable material evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); 38 U.S.C. § 7104 (a). In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and its credibility, a factual determination regarding its probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt, see 38 U.S.C. § 5107 ; 38 C.F.R. § § 3.102 , 4.3, and where the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the claim in order to warrant its denial. See Alemany, 9 Vet. App. at 519-20. 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) The Veteran contends that his service-connected PTSD is more severe than currently rated. For the entire period of appeal, the Veteran's service-connected posttraumatic stress disorder (PTSD) is evaluated under the criteria of Diagnostic Code 9411 as 30 percent disabling. See 38 C.F.R. § 4.130. The VA General Rating Schedule for mental disorders, including PTSD, provides as follows: A 10 percent rating contemplates occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. See id. A 30 percent rating 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 conversation 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). See id. A 50 percent rating 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. See id. A 70 percent evaluation contemplates 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); and inability to establish and maintain effective relationships. See id. A 100 percent evaluation contemplates 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; and memory loss for names of close relatives, own occupation, or own name. See id. The VA Secretary, acting within his authority to “adopt and apply a schedule of ratings,” chose to create one General Rating Formula for Mental Disorders. 38 U.S.C. §§ 501, 1155; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (holding that “the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment”). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. After careful review, and for the reasons set forth below, the Board finds that an increased initial evaluation of 50 percent for the Veteran's service-connected PTSD, is warranted. Throughout the entire period on appeal, the evidence of record reflects that the Veteran's psychiatric symptoms included the following: depressed mood; irritability; chronic sleep impairment; nightmares; flashbacks; avoidance; anxiety; hypervigilance; irritability; disturbances of motivation and mood and impaired judgment. The Veteran reports the following symptoms associated with his PTSD: mood swings, little contact with people outside his immediate family (wife and children), intrusive thoughts, impaired sleep; hyper-alertness; impaired concentration; impaired memory; and not liking to be in crowded places. See October 2020 VA Form 21-4138. A June 2015 VA psychiatry note indicates that the Veteran had a diagnosis of PTSD and mood disorder, not otherwise specified. It was noted the Veteran reported "depressed mood, loss of interest in usual activities, fatigue, difficulty falling asleep, restless, agitation, mind racing, anxiety, no panic, nightmares, intrusive memories, avoidance, numbing, negativism, distancing from friends/families, avoids large crowds, hypervigilance, no hallucinations or delusions. He is interested in group PTSD therapy. Mood is slightly anxious. Affect is slightly anxious, flattened. In October 2015, the Veteran was afforded an initial PTSD VA examination. The examiner diagnosed the Veteran with PTSD chronic, mild manifested by symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events and difficulty in establishing and maintaining effective work and social relationships. The VA examiner noted the Veteran’s occupational and social impairment as 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. A September 2015 VA psychiatry note indicates that the Veteran reported that "I am not doing so good". He reports he quit taking the Gabapentin because "I got tired of taking so many pills, and now I am more anxious" and feeling more irritable but feels this is anxiety related to his job situation. Denies suicidal thoughts or ideations. VA treatment record from February 2016 indicates that on mental status exam, the Veteran’s mood is euthymic. Affect is improved, more appropriate, good eye contact. Recent and Remote Memory are intact. Judgement and insight are fair to poor. Thought Process is intact, linear and goal-directed, with no flight of ideas. Associations appear to be intact, but very circumstantial. Thought content reveals no hallucinations, questionable paranoid delusions related to his "suspiciousness", no homicidal or suicidal ideation, no obsessive, compulsive symptoms. In a June 2016 psychiatry note, the examiner noted that the Veteran has not refilled his medications since January 2016. Veteran is asked about this and reports that he only takes it now and then. Veteran does not feel he needs a medication daily and states he has not taken the sertraline for over 2 months. On mental status exam, the examiner noted the Veteran’s mood is euthymic. Affect is improved, more appropriate, fair to good eye contact. Recent and Remote Memory are intact. Judgement and insight are fair to poor. Thought Process is intact, linear and goal-directed, with no flight of ideas. Associations appear to be intact, but very circumstantial. Thought content reflects no hallucinations, questionable paranoid delusions related to his "suspiciousness", no homicidal or suicidal ideation, no obsessive, compulsive symptoms. VA treatment records dated in March 2017 indicate that the Veteran got into a physical fight with his nephew during which he placed him in a chokehold. Veteran reports extreme guilt, increased depression, decreased need for sleep, difficulty falling asleep, anxiety, panic, increased irritability, racing thoughts, decreased appetite, and nightmares, flashbacks. Mood is mildly depressed, anxious. Affect is mildly anxious, fidgety, slightly flattened. Fair to good eye contact. Thought content reflects no hallucinations, questionable paranoid delusions related to his "suspiciousness", no homicidal or suicidal ideation, no obsessive, compulsive symptoms. In a July 2017 statement, the Veteran stated that he has missed work for an average of 136 hours a year due to his PTSD and that also has impaired his judgement and affected his ability to understand complex commands. VA treatment record shows an August 2017 psychiatry note that indicates the Veteran reported “I [am not] been doing too good at work; I keep slipping up; I have been warned for the 3rd time”. “I just got a lot of stress right now”. Admits to depression, racing thoughts, agitation, increased anxiety, denies panic, admits to nightmares and flashback, obsession, compulsions, admits to paranoid delusions. difficult falling and staying asleep. VA treatment records from October 2017, shows, the Veteran reported “I have been pretty depressed lately … can't clear my mind at night; my thoughts are racing; I just can't sleep”. “I feel like I am in a rut; don't feel like doing anything.” The examiner noted that the Veteran reports he has been taking his medications, however, chart review, notes that he has not filled his medication since June. “2 weeks ago, they laid off 40 people; so that's not helping”. “Feel like things are hopeless, helpless.” “Sometimes I take my medications faithfully for a week or two, then I will drop of.” On exam, attention span and concentration appear to be fair- he is once again, noted to be glancing about the room, and appears to be surveilling the premises at times. Mood is depressed, dysthymic. Affect is no longer anxious, fidgety, but is flattened. Fair to good eye contact. Recent and Remote Memory intact. Judgement and insight fair to poor. Thought Process is intact, linear and goal-directed, no flight of ideas. Associations no longer tangential, moderately circumstantial. Thought content reflects no hallucinations, questionable paranoid delusions related to his "suspiciousness", no homicidal or suicidal ideation, no obsessive, compulsive symptoms. The Veteran was afforded a VA examination in June 2020. The VA examiner noted that the Veteran has not been in mental health counseling from 2017 to 2020. The Veteran reported that he ran out of medication in 2017 and has not been on medication since then and that he would smoke marijuana to sleep. The examiner noted the Veteran’s occupational and social impairment as 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. The Veteran’s PTSD was manifested by symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss, such as forgetting names, directions or recent events. The examiner remarked that “[f]or the past 3 years, the veteran has not required mental health treatment or services. Per his report his mental health providers moved locations and he never got connected to another provider. According to him, two weeks ago, he was seen by a primary care provider and he was prescribed a sleep aid, but there are no records found by this examiner of the visit. He describes a fair relationship with his long-time wife (married for 34 years) with minor strains. He described having close relationships with his children. He has maintained favorable performance at his job, where he has worked consistently for over 13 years. While records note a fight with his nephew in 2017, he denied any other instances of violence or significant conflict since then. In my opinion, the [Veteran’s] current level of mental health symptoms seem consistent with those noted in his previous exam in 2015.” After reviewing the record, the Board finds that the Veteran’s PTSD more closely approximates the schedular criteria for a rating of 50 percent under Diagnostic Code 9411. Specifically, the Veteran reported difficulty sleeping, nightmares, irritability, anger, feeling guilty, some negative thinking, flattened affect, increased anxiety, disturbance of motivation and mood. While the June 2020 VA examination reflects symptoms which appear less severe, the Veteran has contended that the examination was not thorough enough to report all of his symptoms. Furthermore, VA treatment records clearly reflect he sought care for what was felt to be worsening symptoms and he was placed on medication. Thus, resolving all doubt in the Veteran’s favor, the Board finds an increased 50 percent evaluation is granted. Although the Veteran reported symptoms including impaired sleep, irritability and anger, and suicidal thoughts, those symptoms were not of such frequency and severity to result in occupational and a social impairment with deficiencies in most areas to warrant a 70 percent rating under Diagnostic Code 9411. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (stating that use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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). The criteria for a 70 percent rating includes symptoms 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 (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 work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. In this case, the Veteran was not found to have obsessional rituals; speech that was intermittently illogical, obscure, or irrelevant; near-continuous panic or depression that affected the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; or neglect of personal appearance and hygiene. Rather, the Veteran’s speech, judgment and insight were generally logical and coherent, and he could follow a train of thought. Furthermore, the symptoms the Veteran had of difficulty sleeping, irritability and anger, anxiety, suicidal thoughts have not been so frequent and disabling to result in deficiencies in most areas. Although the Veteran reported he was easy to anger and irritable the record does not reflect such emotions led to impaired impulse control or otherwise were to frequent and severe to cause deficiencies in most areas. While treatment records note a fight with his nephew in 2017, at his 2020 VA examination, the Veteran denied any other instances of violence or significant conflict since then. Likewise, the Veteran reported suicidal thoughts; however, during VA treatment and examinations he has generally denied any suicidal ideation. Thus, while the thoughts were a symptom, they were not frequent in nature and not of such severity that it rose to the level contemplated by the next higher rating. The Board acknowledges that the Veteran does have periodic attacks of panic or anxiety related to his PTSD that do affect his functioning when they occur and has considered the nature and severity of those attacks. Significantly, they have not been described as near continuous. The Board acknowledges that the Veteran's PTSD symptoms do cause him occupational and social impairment. However, the record also reflects that the Veteran has maintained significant functioning despite his PTSD symptoms. He maintained relationships with family members (wife, children, father) and was still working during the period on appeal. The Board notes that just recently the Veteran notified that he has been laid off without stating any reasons. See October 2020 VA Form 21-4138. The October 2015 and June 2020 VA examiners opined that the Veteran's PTSD symptoms cause occupational and social impairment with occasional decrease in work efficiency or with intermittent periods of inability to perform occupational tasks, but generally satisfactory functioning, the criteria for a 30 percent rating. Accordingly, the Board does not find that the Veteran’s symptoms were of such frequency, severity, and duration that they resulted in occupational and social impairment with deficiencies in most areas to warrant a higher 70 percent evaluation during this period of appeal. Therefore, an increased 50 percent rating, but no higher, is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Veteran contends that he has a low back disability that is related to his service. He claims that while serving in active duty he was attacked causing him to fall and hit his back, causing back injury. Pursuant to the October 2018 Board Remand, the Veteran underwent a VA examination in September 2020. The examiner opined the Veteran’s back disability was less likely than not related to service. The rationale given was that “Complaints of the [V]eteran's low back pain began in 1990. However, no records were found from 1990-2015 indicating further complications. The [V]eteran's lumbar strain would be classified as an acute condition, therefore a nexus can't be established.” The September 2020 examiner provided separate opinions for the Veteran’s current diagnoses of IVDS and bilateral lower extremity radiculopathy. The examiner also rendered a negative nexus opinion. The rationale provided is that “treatment notes from 1990 shows veteran had complaints of low back pain which confirms diagnosis of lumbar strain. No treatment notes found from 1990-2015 indicating the [V]eteran had any ongoing complaints lumbar strain or back pain. The [V]eteran's back pain would be classified as acute. The [V]eteran's separation exam is silent for any back issues. The [V]eteran's current diagnosis of IVDS and bilateral lower extremity radiculopathy are less likely than not related to incurred or caused by military service. Therefore, a nexus can't be established.” The Board finds these opinions are inadequate because they are based solely on absence of treatment in the record during service and for several decades thereafter. The Court of Appeals for Veterans Claims has specified that a medical examination is inadequate if it relies only on lack of treatment and does not take into account a veteran's lay assertions of injury or symptomatology. The Veteran has stated throughout the appeal period that he has experienced symptoms of low back pain continuously since service. An adequate opinion must take into account these statements. The Board concludes that substantial compliance with the remand directives has not occurred, and that the Veteran's service connection claims for a back disability must once again be remanded to obtain an addendum examination discussing the above-mentioned evidence. See Stegall, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Obtain all VA treatment records that are not currently in the claims file that are relevant to the Veteran’s low back disability claim. After contacting the Veteran and/or his representative to obtain the appropriate authorizations and inquire about any outstanding relevant medical records not currently in the file, request treatment records from any sources the Veteran identifies. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. After any additional records have been included in the claims file, obtain an addendum opinion from the September 2020 VA examiner, or, if unavailable, another suitably qualified examiner. A new VA examination is not necessary unless the VA examiner finds one is needed. The examiner should review the entire claims file. All indicated studies, tests, x-rays, and evaluations deemed necessary should be performed. For each current low back diagnosis-to include lumbosacral strain, intervertebral disc syndrome, bilateral lower extremity radiculopathy and any other low back disability demonstrated in the medical record-the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability is related to service; whether it was chronic in service; whether it manifested to a compensable degree within the presumptive period of one year following service; or whether there is continuity of symptomatology from the Veteran's in-service injury. For all opinions provided, the examiner must provide a rationale (i.e., why or why not). This rationale must explicitly comment on the Veteran's lay statements that he has experienced low back symptoms continuously since service. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.