Citation Nr: 21015963 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-53 543 DATE: March 18, 2021 ORDER Entitlement to an evaluation of 70 percent, and no higher, for service-connected posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for cervical spinal stenosis with degenerative disc disease (claimed as neck issues) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s service-connected PTSD is manifested by depression, suicidal ideation, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and intermittent neglect of personal appearance and hygiene. CONCLUSION OF LAW The criteria for a rating of 70 percent, and no higher, have been met for service-connected PTSD. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2002 to May 2006. As an initial matter, the Board notes that the Veteran appealed a March 2017 rating decision which, in pertinent part, denied an increased rating for PTSD, and he then submitted a statement in April 2019 indicating he wished to withdraw the appeal of his PTSD issue. Subsequently, he submitted an Application for Disability Compensation and Related Compensation Benefits, VA Form 21-526EZ, related to his PTSD in May 2019. In a June 2019 letter and phone call, the Veteran was notified that his May 2019 claim had been received but that his claim for PTSD was already on appeal. At the November 2020 hearing, the issue of entitlement to an evaluation in excess of 50 percent for service-connected PTSD was noted as being on appeal and discussed. In light of the fact that this issue was construed as being on appeal and the Veteran provided testimony on this issue at the November 2020 hearing, the Board will proceed to adjudicate this claim as being on appeal despite the April 2019 withdrawal. The Board has thoroughly reviewed all evidence in the claims file. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the Veteran. The Veteran must not assume the Board has overlooked evidence not explicitly discussed herein. Neither the Veteran nor the Veteran’s representative has raised any issues not addressed herein, to include regarding the duty to notify or the duty to assist, nor have any other issues been reasonably raised by the record. Additionally, the Veteran has not alleged any deficiency with his November 2020 hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The Board notes that, although new evidence was received after the August 2017 statement of the case (SOC), the evidence is not pertinent to the Veteran’s PTSD claim, essentially duplicates evidence already associated with the file, or does not require waiver of initial Agency of Original Jurisdiction (AOJ) consideration, as the Veteran’s substantive appeal was received after February 2, 2013. As such, the Board may proceed to adjudicate the claim as done below, without prejudice to the Veteran. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). In a March 2017 rating decision, the Regional Office (RO) continued a 50 percent evaluation for service-connected PTSD. The Veteran is seeking a higher evaluation. PTSD is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. The General Rating Formula for Mental Disorders includes criteria for rating mental disorders at various levels of disability ranging from 0 to 100. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., the retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A 70 percent evaluation is assigned when the major depressive disorder causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, thinking or mood, due to 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); or an inability to establish and maintain effective relationships. Id. A maximum of 100 percent rating is assigned when the major depressive disorder causes total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly in appropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. Symptoms listed in the 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 symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). When determining the appropriate disability evaluation to assign, the Board must make findings as to how the Veteran’s symptoms impact his or her occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). All ratings in the general rating formula are associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. After a careful review of all pertinent evidence of record, and for reasons and bases expressed immediately below, the Board finds that the Veteran’s service-connected PTSD more nearly approximates the criteria for an evaluation of 70 percent, and no higher, for the entire period of time on appeal. The Board finds that the evidence of record does not reflect that the Veteran’s PTSD manifests with symptoms comparable to near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; impaired impulse control (such as unprovoked irritability with periods of violence); or spatial disorientation. However, the evidence of record does suggest that the Veteran’s PTSD has manifested with recurring suicidal ideation. Specifically, the Veteran testified at the November 2020 hearing that he had suicidal ideation, and that records from July 2012 to the present reflect about 2 dozen calls talking about suicidal ideation. A review of the Veteran’s VA treatment records reflects that he made several telephone calls to the VA National Suicide Prevention Hotline dating back to 2013 and extending to as recently as August 2020. Notably, in an August 2020 VA treatment record, the Veteran reported chronic, daily thoughts of suicide. Moreover, the evidence of record reflects that the Veteran’s PTSD manifests with an inability to establish and maintain effective relationships. The Veteran testified at the November 2020 hearing that he had no friends or regular social activities with others and that he only really maintained relationships with his daughter, wife, and mother. While he was noted at the November 2016 VA examination as having difficulty in establishing and maintaining effective work and social relationships, the Board finds there is no evidence in the claims file reflecting that is able to maintain any relationships beyond those with his wife, mother, and daughter. He testified that he walks in his free time and has not identified any social activities or friendships. At the November 2016 VA examination, he reported that he had separated from his daughter’s mother in 2012 and that his relationships usually suffer because he does not sleep much and will leave the house at night. He also reported that his irritability affects his relationships, and he does not like to socialize. Additionally, the evidence of record reflects that the Veteran’s PTSD manifests with difficulty in adapting to stressful circumstances. Specifically, the Veteran testified that he has only been able to maintain a job for any period of time because the employer and fellow employees make allowances for him. At the November 2016 VA examination, the Veteran reported that he had a lot of problems with employers and reported a varied employment history. Moreover, the Veteran testified at the hearing that there are times where he takes off and lives in his car for a few days, at which time he will not bathe, eat, or brush his teeth. As such, his testimony reflects a neglect of personal appearance and hygiene at times. In light of the Veteran’s suicidal ideation, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and intermittent neglect of personal appearance and hygiene, the Board finds that the Veteran’s service-connected PTSD more nearly approximates the criteria for an evaluation of 70 percent for the entire period of time on appeal. The Board has considered whether the Veteran’s service-connected PTSD meets the criteria for a rating in excess of 70 percent at any point during the period of time on appeal. However, the evidence of record does not reflect that the Veteran’s PTSD manifests with total occupational and social impairment. Regarding social impairment, the Board notes that the Veteran is socially impaired. As noted above, he does not report any friendships or social activities. However, the Veteran is married and apparently has relationships with his daughter and mother. Moreover, he is able to interact with others at a level sufficient to maintain full-time employment. As such, the evidence of record does not reflect that his PTSD results in total social impairment, as needed for an increased 100 percent evaluation. With regard to occupational impairment, the Veteran testified at the November 2020 hearing that his PTSD has affected his employment and that he needs special allowances to function at work. However, he also specifically testified that he was maintaining a full-time position with a suicide prevention group. As such, the evidence of record does not reflect that his PTSD results in total occupational impairment. While the Veteran reported at the November 2020 hearing that he had issues with memory and that he was unable to finish college after 2 attempts, there is no evidence of record, including his own statements, reflecting that his PTSD results in memory loss for names of close relatives, occupation, or his own name. Additionally, as noted above, the medical evidence of record reflects that the Veteran has expressed suicidal ideation. While the Board does not mean to minimize this very serious symptom and its effect on his life, the evidence does not suggest that he is in danger of hurting himself. The record does not reflect that he has ever attempted suicide. In an October 2019 VA treatment record, the Veteran reported thoughts of suicide but indicated that he has never attempted to take his own life. Moreover, as recently as August 2020, a VA psychologist determined that the Veteran did not appear to be at imminent risk to himself or others at this time. This same determination was also noted in a June 2019 VA treatment record. At the August 2016 VA examination, the Veteran denied active suicidal ideation, plan, or intent. With regard to the Veteran’s ability to perform activities of living, including the maintenance of minimal hygiene, the Board notes that the Veteran testified at the hearing that there are times where he takes off and lives in his car for a few days, at which time he will not bathe, eat, or brush his teeth. However, the Board notes that this intermittent neglect of personal appearance and hygiene is compensated with his current 70 percent rating. There is nothing in the record to suggest that the Veteran is unable to perform activities of daily living when he has the means to do so. In summary, the Board finds that the Veteran’s service-connected PTSD has not manifested with symptoms comparable to gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. As such, the Board concludes that the evidence supports the assignment of a 70 percent evaluation, and no higher, for the entire period of time on appeal. Assignment of staged ratings has been considered and is not for application for the period of time on appeal. Hart, supra. REASONS FOR REMAND 1. Entitlement to service connection for cervical spinal stenosis with degenerative disc disease (claimed as neck issues) is remanded. The Veteran is seeking service connection for cervical spine stenosis with degenerative disc disease. The Veteran testified at the November 2020 hearing that he sustained injuries, to include a neck injury, during an improvised explosive device (IED) explosion and that he injured himself during martial arts for combat training. The Veteran’s representative also referenced the Veteran’s cervical spine injury as secondary to a service-connected traumatic brain injury (TBI). On his October 2017 VA Form 9, the Veteran asserted that his cervical spine disability could be related to the wear and tear from training military working dogs during service. In a May 2016 statement, the Veteran asserted that he was punched in the head multiple times in service. A review of his service treatment records reflects that he was involved in an IED explosion. See VA treatment record, January 2005. VA medical opinions from August 2016 and February 2017 addressed the etiology of the Veteran’s claimed neck disability. Neither opinion linked a current neck disability to the Veteran’s service. However, the Board notes that these opinions appeared to be based primarily on a lack of in-service symptoms related to his cervical spine or neck without thorough discussion of the Veteran’s assertions regarding his training of military dogs, martial arts training, or being hit in the head in service. Lack of in-service evidence alone is not a sufficient rationale to support a negative opinion. As such, the Board finds that this issue should be remanded in order to obtain a new VA medical opinion. 2. Entitlement to TDIU is remanded. In reviewing the Veteran’s appeal for an increased rating, the Board has not overlooked the holding of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a TDIU can be inferred as part of the original claim for a higher initial rating in certain circumstances. In this case, the Veteran testified at the November 2020 hearing that he had difficulty working in the past few years. He also indicated on his October 2017 VA Form 9 that his PTSD affected his ability to maintain employment. As such, the Board finds that Rice is applicable to the current appeal, and the issue of entitlement to TDIU should be construed as being on appeal. The Veteran should be provided with a notice letter detailing the requirements for establishing entitlement TDIU and a VA Form 21-8940. Further, the Veteran should submit his income information for the past several years, so VA can determine whether his recent employment has been gainful. The matters are REMANDED for the following action: 1. Associate with the claims file all outstanding treatment records from the Cheyenne VA Medical Center (VAMC) and associated outpatient clinics from June 2019 to the present. 2. Provide the Veteran with notice on how to substantiate his claim for TDIU and ask him to complete a VA Form 21-8940. Also ask the Veteran to submit his income information for each year from 2016 to the present, so VA can determine whether his employment has been gainful (i.e., an earnings statement from the Social Security Administration or tax returns). 3. Provide the claims file to a VA examiner so that a medical opinion may be obtained regarding the etiology of the Veteran’s claimed cervical spine disability. The examiner is asked to respond to the following: (a) Is it at least as likely as not that any current cervical spine or neck disability began during or was caused by his service? (b) Is it at least as likely as not that any current cervical spine or neck disability was caused or aggravated by the Veteran’s service-connected TBI? The examiner should specifically discuss the Veteran’s reports related to his in-service martial arts combat training, the IED explosion, being punched in the head in service, and his duties training military dogs. The examiner should provide a complete rationale for any opinions provided. If additional examination is needed to render the above-requested opinions, such should be provided. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Durham, 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.