Citation Nr: 21026446 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-44 891 DATE: May 3, 2021 ORDER Entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) with unspecified psychotic disorder is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Issue of entitlement to a rating higher than 20 percent for glenohumeral joint dislocation (previously rated as left shoulder strain with history of dislocation) is remanded. FINDINGS OF FACT 1. During the period prior to November 1, 2019, the Veteran's PTSD with unspecified psychotic disorder manifested with total occupational and social impairment due to such symptoms as auditory and visual hallucinations, threats of suicide, impaired judgment, problems with organizing thoughts, intermittent inability to perform activities of daily living, and chronic homelessness and unemployment. 2. The Veteran's service-connected disabilities have precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 100 percent rating for PTSD with unspecified psychotic disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16; Rice v. Shinseki, 22 Vet. App. 477 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2001 to August 2007. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2017 rating decision issued by the Department of Veterans Affairs (VA). See July 2017 Notice of Disagreement (NOD); July 2017 Statement of the Case (SOC); August 2017 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a March 2021 hearing. See March 2021 Hearing transcript. During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted a temporary 100 percent rating from August 23, 2019, to November 1, 2019, for the Veteran's hospital treatment in excess of 21 days for his PTSD. April 2020 Rating decision. The AOJ also assigned a 70 percent rating from November 1, 2019. Id. The Veteran appeal the AOJ's assignment of a 70 percent rating from November 1, 2019, under the modernized review system, also known as the Appeals Modernization Act (AMA). The Board notes that 100 percent rating from August 23, 2019, to November 1, 2019, is considered a full grant of benefits sought for PTSD during that period. The issue of entitlement to a rating higher than 70 percent beginning November 1, 2019, for PTSD will be adjudicated by a separate decision under the AMA. Thus, the issue of entitlement to a higher rating for PSTD that is currently before the Board is limited to the period prior to August 23, 2019. The Board also notes that the Veteran testified during the March 2021 hearing that he has had treatment at the Lebanon VA Medical Center starting two months prior to the hearing, but the claims file contains no treatment records from the Lebanon VA Medical Center. See March 2021 Hearing transcript. However, the Veteran testified that he has had no recent treatment for his left shoulder disability and any treatment for his mental health condition would be after the period on appeal for his PTSD currently before the Board. This evidence would, thus, not be material to the issues currently before the Board. 1. Entitlement to a 100 percent rating for PTSD with unspecified psychotic disorder. The Veteran asserts entitlement to an increase rating for PTSD. January 2017 VA Form 21-526EZ. The Veteran testifies that his PTSD affects his interpersonal skills, but that his memory and concentration are ok. March 2021 Hearing transcript. The Veteran also testified that he is vigilant about possible threats and was incarcerated after a physical altercation due to his mental health symptoms. Id. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board has considered the entire record, but only the evidence pertinent to the rating criteria and current disability will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran's PTSD with unspecified psychotic disorder is currently evaluated under Diagnostic Code 9411 and rated as 70 percent disabling. Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted for a mental condition with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. The next higher, and highest, rating of 100 percent is warranted where there is 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. Id. When evaluating a mental disorder, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. After careful and thorough consideration of the evidence, the Board finds that the Veteran's PTSD with unspecified psychotic disorder has manifested with symptoms that more closely approximates the criteria for a 100 percent rating. Medical treatment records show that the Veteran has had persistent hallucinations, is some danger to himself and others, and has been intermittently unable to perform activities of daily living. In April 2016, the Veteran was seen for inpatient treatment for psychosis. April 2016 VA treatment evidence. The Veteran reported no active suicidal or homicidal ideation and having normal mood. Id. However, his father related that the Veteran had been having visual hallucinations, paranoia, and mentioned suicide. Id. In July 2016, the Veteran's father sought medical help from the VA and reported that the Veteran was again having audio and visual hallucinations and caused the police being called three times in the last two to three weeks. July 2016 VA treatment evidence. A March 2017 VA treatment record indicates the Veteran reported being in a good mood, denied any past history of suicidal ideation, but his treatment provider noted that, within the last year, his partner reported the Veteran making threats of suicide with a gun and the evidence shows at least two hospitalizations for his mental health. The Veteran was afforded an April 2017 VA examination for PTSD in which the examiner found symptoms such as depressed mood, suspiciousness, weekly or less panic attacks, impaired judgment, inability to establish and maintain effective work and social relationships, suicidal ideation, persistent delusions or hallucinations, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The VA examiner remarked that the Veteran was cooperative, but "downplays" the negative impact of his symptoms and became more open after a rapport was established. Id. The examiner found that the Veteran recently missed a bus because he could not organize his thoughts to arrive on time, has chronic issues with coordinating due to his suspiciousness, and reported problems with homeless and chronic unemployment due to his mental health symptoms. Id. The VA examiner is a medical professional qualified to evaluate the Veteran's PTSD, who had the opportunity to review the evidence and examine the Veteran. The Board finds the VA examiner's findings to be probative for this reason. While the VA examiner opined that the Veteran's symptoms would result in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; the Board finds that the symptoms found by the examiner suggest greater impairment. The Board recognizes that the medical evidence shows that the Veteran abuses methamphetamine and has a separate diagnosis for an unspecified diagnostic disorder, which may cause some of the above symptoms. However, the April 2017 VA examiner provided an addendum opinion that the Veteran uses methamphetamine to avoid his PTSD symptoms and his psychotic disorder is also proximately due to or the result of his PTSD. May 2017 VA examination addendum. The symptoms are, thus, all part of the Veteran's service-connected PTSD with unspecified psychotic disorder. The Board also recognizes that the Veteran's own testimony suggests minimal limitations from his mental health symptoms. See March 2021 Hearing transcript. However, as indicated by his March 2017 VA treatment provider and the April 2017 VA examiner, the Veteran tends to minimize the impact of his mental health symptoms. See March 2017 VA treatment evidence; April 2017 VA examination for PTSD. While it is admirable that the Veteran is trying to do what he can, he should be provided the benefits he is entitled to. The Board finds that the Veteran's PTSD with unspecified psychotic disorder has manifested with total occupational and social impairment with symptoms such as auditory and visual hallucinations, threats of suicide, impaired judgment, problems with organizing thoughts, intermittent inability to perform activities of daily living, and chronic homelessness and unemployment. Accordingly, entitlement to a 100 percent rating for PTSD with unspecified psychotic disorder is warranted. 2. Entitlement to a total disability rating based on TDIU. The Veteran testified that he has been unable to work since 2014 or 2015 due to his left shoulder and mental health symptoms. See March 2021 Hearing transcript. He testified to experiencing increased left shoulder pain with lifting as little as 10 pounds, decreased left shoulder range of motion, and problems interacting with the public. Id. The Veteran filed an April 2021 claim for a TDIU, but a derivative "Rice" TDIU claim was also reasonably raised by the record as part of his increased rating claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009) (when entitlement to TDIU is raised during the administrative appeal of the increased rating or initial rating assigned for the underlying disability or disabilities, it is a part of the claim for benefits for that disability or disabilities). To qualify for a total rating for compensation purposes, the evidence must show that a veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more with a combined disability rating of 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the Veteran's service-connected disabilities alone were of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether a veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Board finds that the Veteran has had at least one disability ratable at 60 percent or more since January 24, 2017. The Veteran's PTSD with unspecified psychotic disorder was assigned a 70 percent rating since January 24, 2017, which, as discussed above, the Board has increased a 100 percent rating. The next question for the Board is whether the Veteran's service-connected disabilities caused him to be unable to secure or follow a substantially gainful occupation. The Veteran has a high school degree with some college classes and prior work experience as a security guard, store clerk, and fitness instructor. April 2017 VA examination for PTSD; March 2021 Hearing transcript. The April 2017 VA examination for the Veteran's left shoulder found functional limitations in lifting, carrying, pushing, pulling with his left arm due to his left shoulder glenohumeral joint dislocation. The VA examiner also found general limitations in his left shoulder range of motion. Id. The Veteran reported that even lifting 10 pounds of weight with his left arm would cause pain. Id. As for the Veteran's PTSD with unspecified psychotic disorder, the April 2017 VA examination for PTSD found the Veteran was unable to establish and maintain effective relationships, continues to have auditory and visual hallucinations, mild memory loss, impaired judgment, and intermittent inability to perform activities of daily living such as maintaining minimal personal hygiene. The April 2017 VA examination indicates that the Veteran's homelessness and chronic unemployment may be due to his mental health symptoms. See id. The Board recognizes that the Veteran testified to being unable to work mainly due to his left shoulder disability, but, as discussed above, the Veteran tends to minimize his mental health limitations. See April 2017 VA examination for PTSD; March 2021 Hearing transcript. Likewise, the medical treatment evidence shows that the Veteran generally reports being in a good mood and without suicidal ideation, but he was hospitalized at least three times during the same period, with his father and partner reporting hallucinations and thoughts of suicide. See April 2016 VA treatment evidence; May 2016 VA treatment evidence; July 2016 VA treatment evidence; July 2016 VA treatment evidence; March 2017 VA treatment evidence. While the Board finds the Veteran's testimony about being unable to work since 2014 or 2015 to be credible, his statements about the limitations from his mental health symptoms are less probative. Based on the probative lay and medical evidence, the Board finds that the evidence supports that the Veteran has been unable to maintain a substantial gainful occupation. Accordingly, entitlement to a TDIU is warranted. REASONS FOR REMAND 1. Issue of entitlement to a rating higher than 20 percent for glenohumeral joint dislocation (previously rated as left shoulder strain with history of dislocation) is remanded. The Board cannot make a fully-informed decision in the issue of entitlement to a higher rating for left shoulder glenohumeral joint dislocation because further evaluation is needed by a VA examiner. While the record contains a contemporaneous VA examination regarding the Veteran's left shoulder, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The April 2017 VA examiner did not attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups. See April 2017 VA examination for shoulder and arm conditions. The April 2017 VA examiner found no additional functional loss in the Veteran's left shoulder after repetitive use over time or during a flare-up because there is insufficient evidence or objective examination findings that would provide a reliable prediction of the decreased functional ability. Id. The Veteran reported having decreased range of motion in his left shoulder and that activity with his left shoulder cause increased pain. However, it is unclear if the VA examiner attempted to elicit relevant information on whether the increased pain causes further restriction in the Veteran's left shoulder range of motion. In addition, while the April 2017 VA examiner tested the Veteran's passive range of motion pursuant to the holding in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and noted evidence of pain, the examiner did not provide passive range of motion measurements found during the testing. See id. The Board, therefore, finds that the Veteran should be afforded another opportunity for a VA examination. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of any evaluations and/or treatment received for his left shoulder and provide authorizations for VA to obtain records of any such private treatment. For example, the Veteran indicated that he has been seeking treatment from the Lebanon VA Medical Center since around January 2021. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left shoulder glenohumeral joint dislocation. 2. Readjudicate. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.