Citation Nr: 21023339 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-22 869 DATE: April 20, 2021 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) is granted throughout the entire period under appeal, subject to the criteria applicable to the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities prior to December 1, 2019 is dismissed. REMANDED Entitlement to service connection for precordial chest pain is remanded. INTRODUCTION The Veteran served on active duty in the United States Army from September 1975 to September 1978. When the above-noted issues were previously before the Board in October 2018 they were remanded for additional development. The case has since been returned for further appellate review. The Board also notes the Veteran has additional issues which are also under appeal and were recently addressed in a September 2020 decision; however, it appears the RO is still taking action on those claims. As such, those issues will not be addressed in this decision, but will be addressed in a subsequent Board decision if necessary. FINDINGS OF FACT 1. During the entire period on appeal, the occupational and social impairment from the Veteran’s PTSD has most nearly approximated total. 2. A TDIU is considered a lesser benefit than a 100 percent schedular rating, and the grant of a 100 percent rating renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. CONCLUSIONS OF LAW 1. The criteria for a rating of 100 percent for PTSD have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. Entitlement to a TDIU rating is dismissed as moot. VAOPGCPREC 6-99; 64 Fed. Reg. 52, 375 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Where a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Factual Background and Analysis The Veteran initiated a claim for service connection for his acquired psychiatric disorder in August 2011. Thereafter, the RO granted service connection and entitlement to a 50 percent disability rating in a September 2012 rating decision. In July 2013, the Veteran asserted a higher rating was warranted, and this appeal followed. In an October 2018 decision, the Board inferred the issue of entitlement to a TDIU rating. In a subsequent September 2020 rating decision, the RO increased the Veteran’s PTSD rating to 70 percent and also assigned a TDIU rating, each effective from December 1, 2019. The Board disagrees with the assigned ratings, and for reasons explained below, finds a 100 percent schedular rating is warranted throughout the entire appeal period. PTSD is rated under the General Rating Formula for Mental Disorders. In pertinent part, it provides the following: 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.............................................................................................................50 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 (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.........................70 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...........100 38 C.F.R. § 4.130, Diagnostic Code 9411. Critically, the Board observes the rating criteria for a 70 percent rating for PTSD indicates an array of symptoms, which are likely sufficient to cause impairment and deficiencies in most areas of life functioning, to include work, school, family relations, judgment, thinking, or mood. Such symptoms need not rise to the level of activity preclusion, but rather negatively influence or impact upon most areas of life functioning. A higher 100 percent rating is warranted when the evidence indicates total impairment. 38 C.F.R. § 4.103, Diagnostic Code 9411. The symptoms considered in determining the level of impairment under the Rating Schedule for PTSD are not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. The Board has carefully reviewed the Veteran’s treatment reports from the Fayetteville, Little Rock, Kansas City, Bay Pines, and Memphis VA Medical Centers. The Board has also thoroughly reviewed the results of VA examinations conducted in August 2012, January 2019, and November 2019, as well as his medical records and a determination provided by the Social Security Administration (SSA). Further, the Board has prudently considered the results of a private psychiatric evaluation performed in July 2017, as well as the Veteran’s own statements, a statement from his girlfriend, and a statement from his girlfriend’s sister. In sum, those records show the Veteran received ongoing mental health care throughout the period of this appeal. Additionally, the above-noted evidence shows the Veteran has experienced several significant symptoms and impairments, which include: severely depressed mood, anxiety, suspiciousness, trouble sleeping with nightmares, difficulty with trust, near continuous panic attacks, significant memory and concentration impairments, impaired judgment and thinking, flattened affect, speech and word finding difficulties, disturbances of motivation and mood, difficulty establishing and maintaining work and social relationships, difficulty with stressful circumstances, irritability with violent outbursts, suicidal thoughts, obsessional rituals, delusions and hallucinations, and impaired ability to maintain personal hygiene and perform activities of daily living. Additionally, the evidence shows the Veteran has experienced four divorces and does not have any regular social relationships. He has also lost numerous jobs since his discharge from service as a result of his irritability and has not maintained employment since 2011. Further, the Veteran has received inpatient care on several occasions, and was recently in a physical altercation, though he avoided arrest. Finally, the Board notes a private psychological assessment performed in July 2017 indicates the Veteran’s PTSD has been sufficiently severe throughout the entire appeal period to preclude him from substantially gainful employment. In this case, the copious evidence plainly establishes the Veteran’s psychiatric manifestations have resulted in deficiencies in all applicable areas of life functioning. Specifically, his symptoms have significantly impaired his ability to work, caused him marked social/family impairments, caused deficiencies in judgment, and resulted in severe thought and mood impairments. As noted above, the 100 percent evaluation criteria do not indicate total occupational and social preclusion; rather, it merely states a veteran must have total impairment. The Board again notes a 70 percent rating is warranted when psychiatric manifestations cause impairment in most areas of life functioning; however, this Veteran’s psychiatric manifestations have resulted in impairments in all areas of life. Therefore, the Board has afforded the Veteran the benefit of the doubt and finds his disability picture more nearly approximates the criteria necessary for a 100 percent rating for the entire period on appeal. In closing, the Board notes that a TDIU is considered a lesser benefit than a 100 percent schedular rating, and the grant of a 100 percent rating renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. VAOPGCPREC 6-99; 64 Fed. Reg. 52, 375 (1999). As such, this issue is dismissed, because a 100 percent schedular rating has been assigned throughout the entire appeal period. REASONS FOR REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran’s remaining claim is decided. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the course of the October 2018 remand, the Board found a new examination and medical opinion was necessary, because a May 2012 VA examiner provided merely conclusory statements to support his negative medical opinion addressing the Veteran’s chest muscle pain disability. The Board instructed the examiner to provide a fully articulated rationale, which supported his opinion, and was based on all evidence of record including the Veteran’s assertions. The RO obtained the requested examination and medical opinion in July 2020. In sum, the physician found the Veteran’s pectoralis major muscle strain was less likely than not incurred in service, because of an absence of continued treatment for the condition following service. The examiner again wholly ignored the Veteran’s reports of ongoing chest pain since service. Examiners cannot wholly rely on a lack of contemporaneous treatment or diagnosis, and ignore a veteran’s statements related to lay observable symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). Based on the foregoing insufficiencies, a new VA examination and medical opinion must be obtained in order to achieve substantial compliance with the Board’s prior remand instructions. Accordingly, these matters are REMANDED for the following actions: Afford the Veteran a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran, to address the etiology of the Veteran’s claimed chest muscle disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed chest muscle disability, to specifically include pectorialis major muscle strain or precordial chest pain, at least as likely as not (a 50 percent probability or greater) originated during his period of active service or are otherwise etiologically related to his active service. The examiner must provide a complete rationale for any proffered opinion. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements, to include his reports of chest pain in service, which has persisted. Additionally, the examiner must discuss the Veteran’s treatment for chest pain in service. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.