Citation Nr: 21024644 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 14-13 350 DATE: April 23, 2021 ORDER Entitlement to a 70 percent rating for posttraumatic stress disorder with marijuana abuse (PTSD) from (the earlier date of) February 20, 2007 is granted, subject to the regulations governing payment of monetary awards; entitlement to ratings in excess of 50 percent prior February 20, 2007and in excess of 70 percent from February 20, 2007, is denied. REMANDED 2. Entitlement to service connection for headaches is remanded. 3. Entitlement to increases in the staged (20 percent prior to June 2, 2016, and 10 percent from that date) ratings assigned for a low back disability, to include the propriety of the reduction in the rating from 20 to 10 percent effective June 2, 2016, is remanded. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to August 23, 2016 is remanded. FINDINGS OF FACT 1. Prior to February 20, 2007, the Veteran’s PTSD was manifested by symptoms productive of a disability picture no worse than occupational and social impairment with reduced reliability and productivity; deficiencies in most areas due to PTSD symptoms were not shown. 2. From February 20, 2007, the Veteran’s PTSD disability picture shown is reasonably best characterized as occupational and social impairment with deficiencies in most areas; total occupational and total social impairment is not shown. CONCLUSION OF LAW The Veteran’s PTSD warrants “staged” ratings of 50 percent prior to February 20, 2007, and 70 percent from that (earlier effective) date. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from July to November 1974 and from March to July 1976. These matters are before the Board of Veterans’ Appeals (Board) on appeal from April 2010 and October 2010 rating decisions. The April 2010 rating decision increased the rating for the low back disability from 10 to 20 percent effective May 28, 2009. The October 2010 rating decision granted service connection for PTSD, rated 50 percent effective November 25, 1997, denied service connection for seizures, declined to reopen a claim of service connection for headaches, and denied a TDIU rating. An interim (June 2016) rating decision reduced the rating for the low back disability from 20 to 10 percent, effective June 2, 2016. In August 2016, a videoconference hearing was held before the undersigned; a transcript is in the Veteran’s record. A December 2017 Board decision reopened and remanded the matter of service connection for headaches, and remanded the matters of entitlement to a rating in excess of 50 percent for PTSD, entitlement to increases in the staged ratings assigned for a low back disability (to include the propriety of the reduction), and a TDIU rating. A January 2020 rating decision increased the rating for PTSD from 50 to 70 percent, effective August 23, 2016, and granted a TDIU rating effective August 23, 2016. Accordingly, the TDIU claim is characterized (as listed above) as entitlement to a TDIU rating prior to that date. Harper v. Wilkie, 30 Vet. App. 356 (2018). [The December 2017 Board decision also dismissed (as withdrawn) a claim seeking service connection for seizures; accordingly, that matter is no longer before the Board.] In May 2020, September 2020, and December 2020, the Board granted the Veteran’s attorney 90-day extensions for submission of additional evidence and/or argument. In January 2021, VA received additional argument and evidence pertaining to the instant claims. Finally, the Board notes that on October 6, 2020, the Board sent the Veteran a letter advising him that he could request a virtual tele-hearing instead of waiting for a Travel Board hearing. Upon further review, it was found that he did not have a pending hearing request. Furthermore, in correspondence received on October 20, 2020, his attorney stated that the Veteran does not want a second hearing in his appeal. 1. Entitlement to a 70 percent rating for PTSD from (the earlier effective date of) February 20, 2007 is granted; entitlement to ratings for PTSD in excess of 50 percent prior to February 20, 2007, and in excess of 70 percent from that date is denied. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where, as here, the appeal is from the initial rating assigned with an award of service connection, the severity of the disability during the entire period from the award of service connection to the present, and the possibility of “staged” ratings for distinct periods of time when varying degrees of disability were shown, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When 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. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran’s PTSD with marijuana abuse has been assigned a 50 percent rating from November 25, 1997 to August 23, 2016, and a 70 percent rating from that date under Code 9411 and the General Rating Formula for Mental Disorders (General Rating Formula). [The PTSD was assigned a temporary total rating for hospitalization under 38 C.F.R. § 4.29 from August 22, 2012 to October 1, 2012; accordingly, that period is not for consideration.] Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted where there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is 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. A 100 percent rating is warranted 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 (ADLs) (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9411. Ratings for psychiatric disability are assigned according to the manifestation of particular symptoms, but the 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment from an anxiety disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms listed in Code 9411 (and the General Rating Formula). Instead, VA must consider all symptoms of a claimant’s condition that affect occupational and social function. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Factual Background A November 1997 VA mental health treatment record notes the Veteran’s reports of nightmares/dreams of a motor vehicle accident (MVA) in-service in which his roommate was reportedly crushed. He denied prior psychiatric treatment. He reported smoking marijuana daily to relax and ease his pain (reporting a diagnosis of rheumatoid arthritis). He reported feeling dysphoric but denied suicidal thoughts. The clinician noted he was alert, oriented, coherent, and relevant in conversation. He appeared in “moderate distress” from his symptoms, including depressed mood and anxiety. There were no psychotic symptoms. On January 1998 VA PTSD examination, the Veteran reported that he had quit, or been fired from, 40 jobs since separation from service. He also reported drinking 15 out of 30 days, and using marijuana 6-7 days out of 30 days. He reported sleeping 5-6 hours per night and eating well. He stated that he enjoys reading, writing, and helping his family; he planned to enroll in a singing or rap group; he explained that “he tries to enjoy life.” He reported “vivid recollection” of his roommate’s face and that he hears his voice telling him that he is okay. The Veteran reported anxiety attacks 3-4 times a week (manifested by shortness of breath, nervousness, heart pounding, tingling, and a dizzy feeling for about two minutes), and dreams at least once a month. On examination, he was described as alert and oriented, his speech was clear, coherent, and relevant with normal reaction time. His mood was depressed; his affect was appropriate. He was unable to recall two out of three objects, and had difficulty doing serial 7’s. It was noted that the Veteran is isolative with a diminished interest in activities, hypervigilance, poor concentration and memory, and a sense of foreshortened future. An August 2005 state Department of Corrections (DOC) letter notes the Veteran was incarcerated then for crimes including carrying a concealed weapon, attempted breaking and entering, and armed robbery. On February 21, 2007, the Veteran reported to an (non-VA) emergency room with an abdominal stab wound sustained the prior night. He reported that he was drying a handful of knives he had removed from the dishwasher when he turned and tripped over his toddler child, resulting in a stab wound to his right upper quadrant. He was not sure how much of the knife penetrated his abdomen. A separate treatment record notes his report that he finished drying some dishes he just washed in a sink when he tripped over his child while carrying cutlery. He could not accurately recreate the direction in which the knife traveled after entering his skin. A December 2008 Social Security Administration (SSA) function report notes the Veteran reported that his typical day involves waking up, taking medication, eating, showering, dressing, helping with dishes or picking up after children, watching TV, occasionally walking to the store with someone, and socializing with his children. He reported that he goes outside daily, but does not go far from home alone. He denied needing a reminder to take care of personal needs and grooming; he reported that he does need a reminder to take his medications properly. He reported he enjoyed social activities such as talking on the phone, and playing spades or dominoes. On December 2008 state mental health examination, the Veteran reported that he has three young children with two different women. He lived with a fiancée and spent most of his day watching television or movies, playing with the children, or playing cards. He reported that he has mood swings, and that when he feels down “he is getting better at talking to his fiancée and his oldest [adult] daughter rather than keeping things to himself.” He reported he slept three to five hours per night. He also reported that he does not manage money well, and that his fiancée helps. On examination, he was alert and cooperative without evidence of an overt thought disorder. His responses were logical, and goal-directed, although somewhat circumstantial and tangential. He reported seeing and hearing birds flying through his friend’s house, but acknowledged they cannot actually be there. He felt others were against him, but denied feeling that way about anyone in particular. He denied believing that he has magical or unusual powers, but reported that he receives secret messages from the radio and TV. The Veteran reported that he attempted suicide last year when he stabbed himself in the stomach. The examiner noted that, at times, the Veteran “stare[d] intensely and seemed as if he might be easily irritated and have a propensity to become labile.” He opined that the Veteran is not capable of managing his own benefit funds (due to his history of substance abuse and his self-reports of losing and misplacing money), and that he would have difficulty engaging in work activities “other than ones requiring little cooperative interaction with others.” A January 2009 VA mental health record notes the Veteran’s reports of problems with depression, concentration, and seizures. He reported that after military service he had “problems with keeping jobs, alcohol use, and problems with the law” (noting he served 11 total years in prison for armed robbery and violation of parole). He reported chronic sad mood, problems with energy and concentration, and lack of interest and pleasure (worse over the prior two years following his daughter’s death). He denied anhedonia, hopelessness, suicidal ideation, manic or psychotic symptoms. He reported being divorced but living with a fiancée and two children. He reported he was seen 10 years ago for mental health treatment, given Zoloft, took two doses, and then stopped. On examination he was described as neatly groomed, appropriately dressed, pleasant, and cooperative. His speech was coherent and goal-directed, his thinking was logical, coherent, and goal-directed. His mood was depressed and dysthymic. He denied hallucinations and suicidal ideation. A March 2009 SSA mental residual functional capacity assessment notes the Veteran was ‘Not significantly limited’ or ‘Moderately limited’ in 4 categories (with 20 sub-criteria): understanding and memory, sustained concentration and persistence, social interaction, and adaptation. No categories (or sub-criteria) were noted to be ‘Markedly limited.’ It was noted that the Veteran lives with his family and helps with childcare and other functional activities, such as performing chores, preparing meals, shopping, managing money, and playing cards/dominoes. The examiner opined that although the Veteran’s psychological functioning, cognitive skills, and “emotion life” are impaired or constrained, he is not so limited as to preclude work, and he is not constricted to the point that markedly interferes in functional abilities. The examiner explicitly stated that the Veteran retains sufficient mental function for sustained work activity. An April 2009 SSA record notes the Veteran is able to perform personal care “but it takes longer.” He was able to make sandwiches, wash dishes, wipe counters, go outside daily, ride in a car, go out alone, shop in stores, handle money, watch TV, read, and spend time with others. A June 2009 lay statement from D.M. reports the Veteran has difficulty obtaining a maintaining a job. She noted he has “time laps[es] where he says he is back inside” the truck in the MVA. She also reported symptoms including forgetfulness, loss of concentration, depression, and anxiety. A July 2009 lay statement from the Veteran’s sister reports that the Veteran has “chronic mental changes, such as drifting back in time as if he’s in that truck tumbling again.” She also noted symptoms of depression, anxiety, and memory that “comes an[d] goes.” A September 2009 state mental residual functional capacity assessment notes some of the Veteran’s functional skills/abilities were ‘moderately limited,’ including the ability to: understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, sustain an ordinary routine without special supervision, complete a normal workday and workweek without interruption from psychologically based symptoms, interact appropriately with the general public, accept instructions and respond appropriately, respond appropriately to changes in the work setting, and set realistic goals or make plans independently of others. None of the criteria (including all those not mentioned above) were found to be ‘markedly limited.’ An August 2010 private mental impairment questionnaire (by a RN) notes diagnoses of depression NOS, anxiety disorder NOS, and psychosis NOS. Symptoms specifically noted included poor memory, explosive temper, paranoia, and depression. The prognosis was “guarded.” He checked the relevant boxes to indicate the Veteran has other symptoms, including: loss of interest in most activities, appetite disturbance with weight change, decreased energy, feelings of guilt or worthlessness, impairment in impulse control, generalized persistent anxiety, mood disturbance, difficulty thinking or concentrating, recurrent and intrusive recollections of a traumatic experience, psychomotor agitation or retardation, persistent disturbances of mood or affect, change in personality, apprehensive expectation, paranoid thinking or inappropriate suspiciousness, emotional withdrawal or isolation, perceptual or thinking disturbances, hallucination or delusions, motor tension, emotional lability, pressures of speech, sleep disturbance, and recurrent severe panic attacks occurring on average at least once a week. The examiner opined that the Veteran’s functional limitations were ‘marked’ restriction of ADLs, ‘extreme’ difficulties in maintaining social functioning, ‘extreme’ difficulties in maintaining concentration, persistence, or pace. It was also noted that the Veteran had three episodes (of at least two weeks duration) of decompensation within a 12 month period. An August 2010 lay statement by D.M. reports the Veteran has anxiety, depression, and recurrent dreams/nightmares that cause loss of sleep. She stated that he is a very good father and a good man. On September 2010 VA PTSD examination, the Veteran reported difficulty sleeping, nightmares about three times per week, flashbacks while awake (including of the MVA and his friend’s crushed body). He also reported avoidance behavior (of accident scenes, violent scenes on TV, and large crowds) and that he cannot deal with authority; he reported that he worked at “so many jobs, quit or fired.” He reported that he is afraid to even try to obtain work because “I forget simple things and become angry and start punching the wall.” [He reported that he broke his right hand previously.] He denied suicidal/homicidal ideation, auditory and visual hallucinations, and paranoid thoughts. He reported financial problems and feeling helpless, hopeless, and worthless because of this. He reported that he has “gotten into fights with authority figures, supervisors, and squadron leaders.” He also reported prior arrests (apparently in the 1970’s) for assaulting a taxi driver and domestic violence against his first wife. He lived with a girlfriend and used marijuana to self-treat his PTSD symptoms. The examiner noted symptoms including difficulty with supervisors/authority figures, loss of confidence, memory/concentration difficulties, getting into fights/arguments. The Veteran reported that he used to miss at least four days of work per month. On examination, he was described as alert and oriented. He was anxious and depressed; he cried appropriately when describing the loss of a friend. There were no suicidal/homicidal ideation, auditory or visual hallucinations, paranoid thoughts, or delusions. His immediate recall and recent recall were intact; his judgment and insight were good. The examiner opined that he was capable of managing his VA benefits and capable of performing the ADLs, including attending appointments, and relating to his girlfriend and grandchildren. The diagnosis was chronic PTSD of a moderate severity. On June 2011 VA PTSD examination, the Veteran reported he lived with a girlfriend. He last worked in 2007 and was unemployed “ostensibly due to a combination of physical issues, seizures, and psychiatric issues.” He reported severe depression, panic attacks, recurrent distressing dreams and recollection of an MVA, avoidance of talking about his military service, anhedonia, restricted range of affect, irritability, trouble sleeping, and poor concentration and memory. He denied suicidal/homicidal ideation, hallucinations, delusions, or aggression. He denied difficulty with ADLs, but reported he needs assistance managing finances and setting up/remembering his medications. On examination, he was described as alert and cooperative, with good hygiene and good eye contact. He was logical, coherent, and relevant with no evidence of psychotic thinking. His insight was good. It was noted that he made one error on serial 7’s and two errors on short term memory recall of three words after a short delay. Although Beck Anxiety Index and Beck Depression Inventory tests suggested “severe” anxiety and depression, the examiner explicitly found “he was not portraying his answers accurately or validly,” as he scored 26/30 on the Mini Mental Status Examination. He explained that the “other scores cannot be construed as reliable at this time.” He opined that the Veteran is capable of managing his own funds and stated that his symptoms “appear relatively unchanged from what was reported 1 year ago at the time of the previous evaluation.” He opined that, “Overall, the Veteran reports symptoms of [PTSD] that are present daily, at a moderate level, and have been present since his accident in the mid-1970s” (emphasis added). In a July 2011 lay statement, D.H. (apparently previously known as D.M.) reported that the Veteran has difficulty with concentration and short term memory; she noted he has a tendency to confuse his medication without assistance. She also noted that he has nightmares, dissociates for days at a time, and constantly worries about supporting his family. In an October 2011 statement, the Veteran’s former attorney argued that the Veteran’s PTSD should be rated 70 (not 50) percent. He argued that the symptoms noted on January 1998 examination, including particularly difficulty with interpersonal relationships, difficulty maintaining employment due to problems with authority figures and confidence, anxiety attacks, depressed mood, memory loss, self-isolation, and a sense of foreshortened future warrant a 70 percent rating. The Veteran was admitted to a VA trauma recovery program (TRP) coping skills cohort from August 22 to September 19, 2012. The goals were to reduce depression, reduce anxiety, improve sleep, and maintain sobriety. It was noted that his depression was reduced; he learned different way to cope with anxiety (including with relaxation and exercise); his sleep was partially improved, although he continued to have nightmares; and his sobriety goal was partially met as he attended AA meetings once a week. At discharge, he was alert, oriented, casually dressed and well groomed. His speech was normal, and his thought process was coherent. There were no suicidal/homicidal ideations, delusions, or hallucinations. His concentration, attention, insight, and judgment were intact. On April 2013 VA PTSD examination, the diagnoses were PTSD, depressive disorder NOS, and cannabis dependence. The examiner noted psychosocial and environmental problems including prior divorce, death of a child, chronic illnesses, unemployment, and inability to keep a job. The Veteran reported that he last worked in 2007 and that he tends to leave jobs/walk off jobs/be fired from jobs due to difficulty being around people and “angry problems.” He reported symptoms that included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty being in crowds, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a worklike setting. On examination, he was alert, oriented, and cooperative. He tracked conversation well and showed concrete thought processes. His speech was normal and motor movements were within normal limits. There was no impairment of judgment or abstract thinking. He reported short-term memory impairment that was progressively worsening. He denied suicidal/homicidal ideation and hallucinations. He reported that he was independent in ADLs. The examiner opined that the Veteran is capable of managing his own financial affairs. The examiner explained that the Veteran’s PTSD and depressive disorder are comorbid disorders with overlapping symptoms, and opined that his psychological disabilities manifest in occupational and social impairment with reduced reliability and productivity. She stated “there is occupational and social impairment with work efficiency and therefore limits his ability to perform occupational tasks which are limitations to employment.” She opined that the Veteran’s “serious symptoms” would prevent him from engaging in gainful employment with physical or sedentary work, but also opined that his symptoms are not permanent and that there is potential for improvement. A January 31, 2014 emergency department record notes the Veteran presented after a reported suicide attempt with a firearm. He said the gun misfired and he discarded it. He reported that he has been experiencing depression, auditory hallucinations, and suicidal ideation for about a year, but he had concealed these symptoms from his outpatient mental health providers. He reported that his medications were not working to control his mood or psychotic symptoms. He also reported a goal of continuing to work as a peer counselor at a local mental health center. On discharge, after several days in the hospital, his suicidal ideation was diminished, but his auditory hallucinations were not fully resolved. A February 4, 2014 mental health treatment record notes the Veteran’s report that he was living independently in his own apartment. He was unemployed, but reported that he had worked from April 2013 to January 201[4] as a certified peer support specialist through the State. He had previously enrolled (in 2013) in a medical assistant program at a local college, but he did not complete the program. He reported that he is motivated to work and continue his education. A February 14, 2014 mental health treatment record notes the Veteran’s reports of good mood and appetite, but trouble sleeping. He reported an auditory hallucination last night, and that he slept through it. He denied delusions and suicidal/homicidal ideation. On examination, he was alert, oriented, and well dressed and groomed. His mood was good, he was cooperative, his speech was normal, and his thought process was linear and goal-directed. His judgment was chronically impaired based on history, and his insight was limited (he had limited awareness of illness). The examiner noted impressions including substance use disorder, psychotic disorder NOS, financial problems, and poor family support. A July 2015 emergency treatment record notes the Veteran’s report of suicidal ideation for the past 6-8 months. His plan was to use a gun, but he did not own a gun. An addendum record notes he reported auditory hallucinations that told him to hurt himself. An August 2016 private vocational evaluation report (by Dr. D.M., PhD and RN) notes the Veteran lives with a significant other and two minor children. He reported recurring nightmares, sleep disturbance, anxiety/nervousness/sadness, depression, impaired anger management skills, and impaired memory and concentration abilities. He reported that he cannot deal with crowds, such as in a store or large work environment. He also reported memory and concentration issues that make learning new information difficult. Dr. D.M. opined that the Veteran cannot work because of his impaired social skills, anger management, memory and concentration skills, and sleep impairment (including feeling groggy in the day due to medication). He subsequently opined that the Veteran cannot work due to his PTSD, back disability, and “pharmacological treatment.” An October 2017 VA mental health record notes the Veteran was seen for an unscheduled visit. His wife reported he “has not been doing well” and had not been taking his medications for four days. He reported feeling anxious and tense (explaining financial troubles); he denied depression and suicidal/homicidal thoughts. He reported nightmares, screaming in his sleep, and trauma-related intrusive memories. He stated that he is “antisocial” and does not like to socialize with people; he denied significant social or physical activities. He spent most of his day watching movies and listening to music. He also reported seeing “stuff” in his peripheral vision and that he has “visions of birds flying in the house.” He reported some paranoia but denied fixed delusions. The examiner noted that he was alert, oriented, casually dressed, and fairly groomed. His mood was restricted, but his speech was normal, and his thought processes were coherent without any loose associations. His concentration and attention were intact. On September 2018 VA PTSD examination (by the April 2013 examiner), the Veteran reported no change in his social/family history since the prior April 2013 examination. He reported that he lives with his wife and two children, and that his wife is very supportive. He reported symptoms including: sleep problems, persistent dreams about stressor, hypervigilance, fatigue, chronic pain, anhedonia, persistent ruminations, restlessness, tremors (from injury), anxiety, persistent feelings of depression, chronic illness, difficulty in crowds, difficulty being around new people, and visual hallucinations of a brown bird (weekly to a couple times per month). He denied suicidal/homicidal ideation. The examiner also noted mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, spatial disorientation, and persistent delusions or hallucinations. On examination, the Veteran was alert and oriented, cooperative, appropriately groomed, and tracked conversation well. He had normal speech and maintained good eye contact. His cognitive function was within normal limits, but he showed decreased concentration, short-term memory impairment, and spatial disorientation. He reported that he was independent in ADLs. The examiner opined that the Veteran’s psychological disabilities manifest in occupational and social impairment with difficulties in most areas. In January 2019 correspondence, the Veteran’s former attorney argued that the Veteran’s PTSD warrants a 100 percent rating since September 17, 2018 (the date of the VA PTSD examination). She acknowledged that “most of these symptoms are listed at the 70% rating,” but argued the notation of persistent delusions or hallucinations (listed in the criteria for a 100 percent rating) warrants a 100 percent rating. In a May 2020 affidavit (received by VA in January 2021), D.H. reported that the Veteran has anxiety (which she believes can trigger his headaches) and PTSD that manifest in anxiety attacks and “pretty bad nightmares.” She also reported that he has audio and visual hallucinations of a little bird and his deceased daughter. In a separate May 2020 affidavit (also received in January 2021), D.H. stated the Veteran’s PTSD is “extremely severe.” She reported that he does not trust people and avoids places with too many people or too much noise. She explained that he tends to self-isolate, even at home; he does not do well interacting with others due to “irritability, suspiciousness, and anxiety.” She opined that his tendency to isolate has caused a “very strained” relationship with the children. She noted that his “memory loss causes him to forget that he has done or hasn’t done something” (such as brushing his teeth), so she often reminds him of tasks throughout the day. She noted that he has told her about violent thoughts and hallucinations (audio and visual); she also stated that she hears him talking to himself at times. She reported that he can be “unreasonably angry” and that he has “angry impulses.” She explained that in 2009 he punched a wall and television. She also reported that last year he was handcuffed by police who told her they believed he may have been trying to harm himself with a beard trimmer. In January 2021, VA received a private opinion dated August 2020, from Dr. K.B. She indicated that she reviewed more than 3,000 pages of the Veteran’s file and conducted a telephone interview of the Veteran. She summarized much of the factual background outlined above. [She also provided a nexus (to service) opinion regarding the Veteran’s headaches (discussed in the Remand below), and opined that such have been completely prostrating with prolonged attacks productive of severe economic inadaptability since November 1997.] On clinical interview, the Veteran reported that his mood is “up and down,” and that when he “becomes cranky, he will sit by himself.” He reported that he feels “nervous a lot” and is in “constant panic.” He reported that in the past he punched a wall in anger and that he no longer shops at big-box stores after he experienced a panic attack 5-10 years prior in a large store. He reported that noises such as those from trucks make him panic; he tends to stay inside and wear noise-cancelling headphones. He stated that he “sometimes” experiences flashbacks when watching TV and that he frequently experiences recurrent memories/nightmares. He reported diminished interest in previously enjoyed activities, diminished concentration, hypervigilance, depressed mood, and easy startle; he denied suicidal ideation. His wife shared that the Veteran voices feeling worthless because of his inability to provide for the family and to do “normal things around the house.” She explained that he cannot get along with authority figures and will “not do something he was told to do out of spite.” She also reported that he “fights” and “curses” in his sleep, he sweats in bed, and that his appetite fluctuates. She explained that the Veteran “needs reminders occasionally” about taking medication and that she assists him in the shower due to dizziness. Dr. K.B. noted that the Veteran was fully oriented, pleasant, cooperative, and rapport appeared established. His speech was logical and goal-directed. She noted that his remote and recent memory appeared mildly impaired based on their conversation and the need for his wife to provide details. Dr. K.B. opined that the Veteran’s PTSD warrants a 100 percent rating throughout. From 1997 to 2002, she applied a prior (incorrect and inapplicable) version of rating criteria to opine that the Veteran’s PTSD was manifested by psychotic manifestations of such extent, severity, depth, persistence, and bizarreness as to produce total social and industrial inadaptability as well as panic and explosions of aggressive energy resulting in profound retreat from mature behavior. [The Board notes that the criteria for rating psychiatric disorders were revised effective November 7, 1996, not 2002.] In reaching this conclusion, she cited to the January 1998 VA examination report noting the Veteran’s report of seeing his friend’s face as a hallucination, and the September 2010 VA examination report (8 years after the period she self-delineated) which noted the Veteran’s reports of arguments and fights with authority figures. Dr. K.B. continued to opine that from 2002 to present, the severity of the Veteran’s PTSD is most consistent with total occupational and social impairment. She explained that the Veteran had demonstrated grossly inappropriate behavior, including having been in an altercation with a taxicab driver in 2003, being arrested for breaking and entering, robbery, and assault with a dangerous weapon, and having an explosive temper (citing to the August 2010 mental impairment questionnaire). She also noted his fiancée’s report that the Veteran “verbally lashes out but has punched a wall in the past out of anger.” She noted several past clinical records/examination reports since 2010 which note his reports of auditory and visual hallucinations (including of a brown bird and his deceased daughter); he reported visual hallucination of a bird during the interview. Dr. K.B. noted an inability to maintain his personal hygiene, citing to the August 2010 questionnaire (regarding neatness and cleanliness, marked as “Unable to meet competitive standards”) and his fiancée’s May 2020 affidavit (regarding reminders to take care of his hygiene). She noted that during her interview, the Veteran reported “an overall inability to be around other people” and poor frustration tolerance to the point he becomes “mean.” He explained that he spends as much time as possible alone in his room wearing noise-cancelling headphones, and that he cannot enter a store due to hypervigilance and panic attacks. [Dr. K.B. also opined that the Veteran has been unable to secure and follow substantially gainful employment solely as a result of his PTSD and that his PTSD is of such significance that he has been in need or regular aid and attendance (A&A) “for the period from 2005 to present” because of a “total inability to perform instrumental activities of daily living in the absence of his wife who provides daily caregiving for him.” (The significance of 2005 is not explained; the rationale for the opinion does not address why such date was selected, and the factual summary provided by Dr. K.B. does not correlate, other than a notation of the Veteran being incarcerated “for jumping parole from 2005-2006.”)] Analysis The Veteran’s PTSD has been assigned “staged” ratings of 50 percent rating prior to August 23, 2016, and 70 percent from that date. Upon review of the record, the Board finds that from February 20, 2007 the Veteran’s PTSD has presented in a disability picture reflecting occupational and social impairment with deficiencies in most areas (warranting a 70 percent rating). Notably, on February 20, 2007, he apparently attempted suicide by stabbing himself in the stomach with a steak knife (although his reports of that incident have varied). [He initially reported at that time that he tripped over a child while drying a handful of cutlery, his contemporaneous accounts during treatment for such wound were inconsistent. The records do not mention other wounds/markings from what should have been another cutlery in a fall. He only later, in December 2008, tole a state mental health examiner that he attempted suicide in the prior year when he stabbed himself in the stomach.] Based on the facts presented, including the contemporaneous treatment records and the impartial report from the state examiner, the Board finds the record equivocal whether the incident was a suicide attempt, and not an accident (and resolved the ambiguity in his favor by finding more favorable to the rating of his psychiatric disability). Treatment records and examination reports from February 20, 2007 to present show symptoms including suicidal ideation (on and off, including another suicide attempt in January 2014 when a gun [that was not presented, reported discarded in unknown manner] misfired), visual and auditory hallucinations (including seeing a brown bird, seeing a friend’s face, hearing his daughter’s voice, and hearing secret messages from the radio and TV), difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, depressed mood, feeling hopeless/worthless, disturbances of motivation and mood, sleep disturbances, memory loss, fluctuating appetite, social isolation, anger issues (reported as verbal lashing out, with one incident of punching a wall), anhedonia, hypervigilance, and spatial disorientation (noted more recently on September 2018 VA examination). Although September 2010 and June 2011 VA examiners opined that the Veteran’s PTSD was of a moderate severity, and the April 2013 VA PTSD examiner opined the Veteran’s PTSD manifested in reduced reliability (and not occupational and social impairment with deficiencies in most areas), the Board finds, affording the Veteran the benefit of the doubt, that his PTSD with marijuana abuse manifested in occupational and social impairment with deficiencies in most areas (warranting a 70 percent rating) since February 20, 2007. The Board has considered whether a 100 percent schedular rating was warranted at any time during the period from February 20, 2007, and finds that it was not. The Board notes the Veteran’s preference for social isolation and reports of trouble with authority/supervisory figures. However, he has consistently been in a personal relationship, lived with his family, and helped with childcare and other functional activities, such as performing chores, preparing meals, shopping, managing money, and playing cards/dominoes (and based on the most recent private opinion he has submitted (references to wife therein) has married. He has been described as a good father to his children. See August 2010 lay statement by D.M. He reported that he enjoys talking on the phone and walking to a store with someone. See December 2008 SSA function report. Examination reports/treatment records show he has been consistently described as alert, oriented, cooperative, and adequately or well-groomed. His speech and motor movements have been normal, and his thought process has generally been logical, concrete, and goal-directed. Although the August 2020 private examiner opined that the Veteran needs assistance with the ADLs, contemporaneous treatment records/examinations consistently note he is capable of performing the ADLs (although at a slower pace, at times). See March 2009 SSA mental residual functional capacity assessment, April 2009 SSA record, September 2010 VA PTSD examination report, April 2013 VA PTSD examination report, and September 2018 VA PTSD examination report. The Board finds the periodic assessments of ADL ability in the course of treatment more probative than the assessment by a private provider made for the purpose of supporting a compensation claim. Furthermore, no examiner other than the private August 2020 examiner has opined that the Veteran’s PTSD manifests in total occupational and social impairment. Examiners have consistently described his PTSD functional impairment as ‘moderate’ (March 2009 SSA mental residual functional capacity assessment, September 2009 state mental residual functional capacity assessment, and June 2011 VA PTSD examination report), ‘marked’ (on August 2010 private mental impairment questionnaire), reduced reliability and productivity (April 2013 VA PTSD examination report), and occupational and social impairment with deficiencies in most areas (August 2018 VA PTSD examination report). Even the contemporaneous symptoms reported on August 2020 mental status examination (pleasant, cooperative, established rapport, logical speech, anxious mood and affect, mild memory impairment, denial of suicidal ideation, and visual hallucination) do not suggest or approximate a disability picture of total occupational and total social impairment. The evidence from February 20, 2007 does not show gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others (acknowledging two apparent suicide attempts), intermittent inability to perform ADLs (including maintenance of minimal personal hygiene), disorientation to time or place (other than some spatial disorientation noted on September 2018 VA examination), memory loss for names of close relatives, own occupation, or own name, or other symptoms of such nature and severity. The Board acknowledges the January 2019 argument (by the Veteran’s former attorney representative) that the notation of persistent delusions and hallucinations warrants a 100 percent rating, particularly since September 17, 2018. The Board disagrees. As stated by that attorney, “most [emphasis added] of [the Veteran’s] symptoms are listed at the 70% rating,” suggesting she, in fact, recognizes his psychiatric disability more closely approximates a 70 percent, and not a 100 percent, rating. Furthermore, the Court of Appeals for Veterans Claims (CAVC) has made it clear that the Board must consider the totality of the Veteran’s symptoms when determining the rating to be assigned for a psychiatric disability. [Under the 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).] The presence or absence of any one symptom listed in the criteria is not necessarily dispositive of any particular disability level. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013); Mauerhan, supra.] Here, the overall record does not present a disability picture of total occupational and total social impairment. The Board also acknowledges the August 2020 examiner’s opinion that the Veteran has demonstrated grossly inappropriate behavior and significant impulse control problems, relying in part on his convictions of several felonies as evidence “demonstrating severely poor judgment.” The file is devoid of evidence regarding why the Veteran committed such crimes; it is presumptuous and conclusory to assume such was done due to a lack of judgment, and not simply criminal intent or misconduct. The record does not show that he was found not guilty due to insanity, or that he served a period of incarceration at a mental health institution (evidence that would tend to support he lacked judgment and insight). Although a February 2014 treatment record notes that his insight was limited, and judgment was impaired, other contemporaneous examination reports note his insight and judgment were good or intact in September 2010, June 2011, February 2012, and April 2013. In summary, the Board finds the Veteran’s contemporaneous reports of symptomatology, and the numerous examiners’/providers’ contemporaneous opinions to be more probative than a single retrospective opinion provided (up to 15 years later) in the context of a claim seeking compensation benefits. The evidence of record from February 20, 2007 simply does not show that the Veteran’s PTSD has more closely approximated total occupational and [emphasis added] total social impairment, and a schedular 100 percent rating is not warranted. What remains for consideration is entitlement to a rating in excess of 50 percent prior to February 20, 2007. The Board has considered whether a disability picture of occupational and social impairment with deficiencies in most areas (or worse) warranting a 70 percent (or higher) rating was shown at any time prior to February 20, 2007, but finds that it was not. Although the clinical evidence for that period is limited (apparently as the Veteran was incarcerated for crimes committed during some of this period), a November 1997 treatment record and a January 1998 examination report show he was found to be alert, oriented, coherent, and relevant. Although he was isolative with a diminished interest in activities, hypervigilance, poor concentration and memory, and a sense of foreshortened future, he also reported that he enjoys reading, writing, and helping his family. He planned to enroll in a singing or rap group (suggesting that he was seeking productive social interaction with others) and explained that “he tries to enjoy life.” He was described as in only “moderate distress,” due to his PTSD symptoms (not ‘severe’ or ‘total’ distress). The evidence does not show suicidal ideation, obsessional rituals which interfere with routine activities, illogical/obscure/irrelevant speech, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, spatial disorientation, neglect of personal appearance and hygiene, and inability to establish and maintain effective relationships, or any other symptoms of such nature and severity. The Board again acknowledges the Veteran’s report of visual hallucinations during this period. However, the presence or absence of any one symptom listed in the criteria is not necessarily dispositive of any particular disability level. See Vazquez-Claudio v. Shinseki, supra. Furthermore, the Board finds that a “holistic analysis” of the evidence shows that prior to February 20, 2007 the Veteran’s psychiatric symptoms resulted in a disability picture most closely approximating occupational and social impairment with reduced reliability and productivity. The evidence of record simply does not show occupational and social impairment with deficiencies in most areas (or total impairment) during the period prior to February 20, 2007. Accordingly, a schedular 70 percent (or higher) rating was not warranted prior to February 20, 2007. REASONS FOR REMAND 2. Entitlement to service connection for headaches The Board remanded this matter in December 2017 for a medical opinion regarding the likely etiology of the Veteran’s headaches, to include specifically whether such disability has been aggravated by his service-connected PTSD. In September 2018, a VA physician (chief of neurology) reviewed the record and provided a negative direct nexus (to service) opinion. [That opinion appears adequate.] Regarding the secondary service connection theory of entitlement, the physician wrote that, “PTSD is not a medically recognized cause of migraine. Migraine may be genetic in origin and can also be acquired. As his PTSD precedes the onset of his migraine I can only speculate that it mater[i]ally alters his migraine disorder.” This opinion is inadequate as it does not address whether the Veteran’s PTSD aggravates his headaches. Additionally, the order of development of the disabilities (PTSD prior to headaches) does not suffice as a rationale as it does not address whether there has been aggravation since the onset of headaches. The Board acknowledges an August 2020 (received in January 2021) private opinion by Dr. K.B. that the Veteran’s headaches are directly related to service because he “has consistently reported that both his headaches and symptoms of PTSD began following an in-service head injury caused by a motor vehicle accident.” However, that opinion is inadequate because it is based on an inaccurate factual premise. Contemporaneous records show that the Veteran denied headaches for many years after separation from service. On June 1976 separation from service examination, he denied frequent or severe headaches and denied a head injury. On April 1979 Department of Corrections (DOC) examination, he checked the box to indicate there was nothing wrong with his health. On July 1988 DOC examination, he reported feeling tired and having high blood pressure; he denied all other conditions. And a December 1989 DOC treatment record notes he denied vertigo and headaches. Although Dr. K.B. relies on a January 1998 VA PTSD examination report when the Veteran reported headaches and blackouts since service, a May 2003 VA treatment record notes his report of headaches and blackouts for the prior 9 years (so since approximately 1994), and a May 2009 treatment record notes his report of headaches “for several years now” (not since separation from service more than three decades prior). As the opinion does not address the numerous contemporaneous records against continuity since service (evidence that directly contradicts a finding of headaches since service), it is inadequate for rating purposes. As the Board is left with an unresolved medical question, remand for an advisory addendum medical opinion which adequately addresses the secondary service connection (including specifically aggravation) theory of entitlement is necessary. 3. Entitlement to increases in the staged (20 percent prior to June 2, 2016, and 10 percent from that date) ratings for a low back disability, to include the propriety of the reduction effective June 2, 2016 In a September 2019 statement, the Veteran’s attorney contends that the June 2016 and November 2017 VA examinations “failed to properly estimate motion loss during periods of flare-ups,” citing to Sharp v. Shulkin, 29 Vet. App. 26 (2017). He noted that the June 2016 and November 2017 examiners stated that the Veteran could “potentially” show further limitation in range of motion, increase in pain, and decrease in functional loss during flare-ups, but declined to opine on those matters without resorting to mere speculation. Accordingly, he contends the examination reports are inadequate to support a rating reduction. Upon review of the record, the Board agrees that remand is required for a Sharp-compliant examination that is adequate for rating purposes. The June 2016 VA spine examiner wrote that the Veteran “could potentially have further limitation in range of motion…” when he “leaves the clinical setting and returns to usual day to day environment/activities.” The November 2017 VA spine examiner repeated that statement nearly verbatim. Considering the duration of time since the Veteran was last examined, and the attorney’s arguments regarding the prior examination reports, the Board finds remand is necessary for an examination to ascertain the current severity of his back disability and for a retrospective opinion which describes, to the extent possible, the degree of additional range of motion loss during flare-ups or with repeated use over time (including in a day-to-day setting) based on contemporaneous clinical records, the Veteran’s reports of functional loss during flare-ups, and the examiner’s own medical background and knowledge of thoracolumbar spine functional impairment (given the Veteran’s specific historical presentation). 4. Entitlement to a TDIU rating prior to August 23, 2016 The issue of entitlement to a TDIU rating prior to August 23, 2016 is inextricably intertwined with the claims being remanded. [Notably, the record contains an August 2016 private opinion that the Veteran is unable to maintain substantially gainful occupation due to his service-connected PTSD and back disability.] Appellate consideration of the TDIU claim must be deferred pending resolution of the other remanded claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Furthermore, the Board’s decision above granted him an increased “staged” rating for PTSD; with the increased rating, the schedular rating requirements for TDIU are now met prior to August 23, 2016. The posture of the claim for TDIU prior to August 23, 2016 is changed, and due process requires that the AOJ be afforded initial opportunity to consider the TDIU claim considering that changed posture. Significantly, the record outlined in the decision above suggests that for some of the period in question (e.g., from April 2013 to January 2014; see February 4, 2014 treatment record) the Veteran was employed, for some of the period in question he was incarcerated for felony, and at some point he was participating in an educational or training program, all factors for consideration in determining entitlement to a TDIU rating. [And periods of incarceration may have impact on payment of compensation.] Full development of all these aspects is needed before this matter is decided. The matters are REMANDED for the following: 1. Arrange for exhaustive development to confirm for the record accurately and conclusively any (and all) periods of employment the Veteran may have had during the period for consideration of this claim for a retroactive TDIU rating; all periods of his incarceration during the period for consideration; and any periods of training or education he engaged in during the period. He must assist in this matter by providing all identifying information sought. 2. Secure for the record updated (to the present, all not already associated with the record) complete clinical records of VA evaluations and treatment the Veteran has received for his headache and low back disabilities. 3. Arrange for the Veteran’s record to be returned to the September 2018 VA headaches examiner for an addendum opinion regarding the likely etiology of the Veteran’s headaches. [If that provider is unavailable or unable to provide the addendum opinion sought, arrange for the record to be forwarded to another appropriate clinician for review and the opinion sought.  If that occurs, and further examination of the Veteran is deemed necessary, such should be arranged.]  The Veteran’s entire record (to include this remand and the September 2018 VA headaches opinion) must be reviewed by the examiner. The provider should provide an opinion that responds to the following: Is it at least as likely as not (a 50% or greater probability) that the Veteran’s headaches were caused or aggravated by his service-connected PTSD with marijuana abuse? The opinion must address aggravation. [The consulting provider is reminded that the order of onset is not a sufficient basis for providing a negative opinion.] All opinions must include rationale that cites to supporting factual data and medical principles, as deemed appropriate. 3. Arrange for an orthopedic examination of the Veteran to assess the current severity of the Veteran’s service-connected low back disability, and for a retrospective opinion regarding the severity of the disability in the past. The Veteran’s record (to include this remand, and the June 2016 and November 2017 VA spine examination reports) must be reviewed by the examiner in conjunction with the examination. All pertinent findings should be described in detail. The findings must include reports of range of motion studies and the examiner should note the degree of any further limitations due to pain, weakness, incoordination, and/or fatigue, including with repeated use over time and during flare-ups. The examiner should note whether or not there were incapacitating episodes of disc disease (periods of bed rest prescribed by a physician), and if so, their frequency and duration; neurological symptoms, and if so, their nature and severity; and whether the spine is ankylosed. The consulting provider is also asked to furnish a retrospective opinion addressing the functional loss due to the service-connected low back disability during flare-ups and when the back was used repeatedly over time. On review of the claims file and interview of the Veteran, the examiner should: Describe how/estimate the extent to which the Veteran’s low back disability limited his functional ability due to pain, weakness, fatigability, or incoordination during flare-ups or with repetitive use over time during the period from May 2009 to present. (Notably, on June 2016 and November 2017 examinations, both examiners provided range of motion estimates during flare-ups, but also stated that the Veteran “could potentially have” further limitation in range of motion in day to day activities.) The determination should be portrayed in terms of the degree of additional ROM loss due to pain, weakness, fatigability, or incoordination during flare-ups or with repetitive use over time. If such findings cannot feasibly be made, or if an approximation of such findings in reliance of the Veteran’s statements cannot be given, there must be a full explanation why that is so. [Regarding flare-ups causing additional loss of motion, a response that the requested opinion cannot be provided “without resort to mere speculation” because there was insufficient medical evidence upon which to rely of itself is insufficient because it fails to explain why such loss feasibly could not be determined or estimated. (For example, what further medical evidence is necessary to feasibly describe such findings, or approximations, and may the Veteran’s own contemporaneous descriptions of his flare-ups be relied upon to form a conclusion?)] Complete rationale should accompany all opinions. 4. Before readjudicating the claim for a TDIU rating prior to August 23, 2016, arrange for any further development needed to decide that claim considering the Board’s decision above, the determinations on the other issues remanded, and the results of the development sought in paragraph # 1, above. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.