Citation Nr: 21027046 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-00 315 DATE: May 4, 2021 ORDER Throughout the period on appeal, entitlement to a rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to regulations governing the payment of monetary awards. REMANDED Entitlement to a compensable rating for left trochanteric bursitis with limited flexion is remanded. Entitlement to a rating in excess of 10 percent for lumbar spine strain with l5-S1 disc bulge is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms of PTSD most closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW Throughout the period on appeal, the criteria for a rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 2011 to January 2012 and a verified period of active duty for training from February 2008 to June 2008. These matters are before the Board of Veterans' Appeals (Board) on appeal of a January 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). During the appeals process, the RO increased the Veteran's rating for lumbar spine from a noncompensable rating to a 10 percent rating in an April 2018 rating decision. In a November 2018 rating decision, the RO increased the Veteran's rating for PTSD from a 30 percent rating to a 50 percent rating. Further, in a June 2019 rating decision, the RO increased his rating for PTSD to 100 percent from January 28, 2019 to March 31, 2019 due to a period of hospitalization over 21 days. Thus, the period during which he has a 100 percent rating for PTSD is not before the Board as he already has the maximum schedular rating. In September 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the claims file. Entitlement to a rating of 70 percent, but no higher, for PTSD is granted. Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155, 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the General Rating Formula for Mental Disorders, which provides the following criteria: A 70 percent rating is warranted when 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 work-like setting' and the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A maximum 100 percent rating is warranted when 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; and memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effect, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F. 3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability 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. On May 2018 VA examination, the examiner noted the Veteran is diagnosed with PTSD and unspecified depression disorder (UDD) and that symptoms of PTSD and UDD cannot be separated out. The examiner found the Veteran to have "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation." The Veteran reported he is often "snappy" toward his spouse and has anger control issues. He also said he has "bad days" where he isolates himself by locking himself either in his room or in the basement and asks relatives to watch his children if his wife is working on these "bad days." The Veteran explained that he is friends with his pastor, and they hunt together, and he was friendly with his landlord, whom he worked for part-time. He indicated that his employment with his landlord was ideal because he could work on the days and times when he feels able, as long as tasks are completed. The examiner noted the Veteran's symptoms as depression, anxiety, suspiciousness, chronic sleep impairment, and suicidal ideation. The examiner observed the Veteran displayed appropriate eye contact, fair hygiene, normal and responsive facial expressions, and normal motor behavior, speech, and thought processes. His affect was appropriate to topics discussed and he displayed an anxious mood mostly. He denied any history of hallucinations and did not display delusional thinking or paranoid thoughts. His insight and judgment appeared fair. He was oriented to person, place, and time. While the Veteran expressed suicidal ideation and thoughts, he said he had no intentions to follow through, although he has considered removing his guns from his home. In a VA treatment record from January 2019, the Veteran reported his symptoms of depression, anxiety, anger, intrusive memories, nightmares, and poor sleep had increased over the last year. He also reported difficulty managing his anger and passive suicidal ideations, although he had no intent on acting on these thoughts. In his September 2020 hearing testimony, the Veteran said he currently experiences depression and is always anxious. He has had no friends in the last couple of years because he "managed to run them all off because it's hard to have friends or have any outside life when all you can think about is quite honestly, the people [he] had to kill in Iraq." He goes on to describe how he has difficulty trusting others, has short-term memory loss and memory issues to the point he argued with his mother over how old he was because he lost two years, and has issues with speech, primarily with getting the words out because of difficulty clearly processing things in his head. He previously worked as a mechanic but no longer does anything mechanical anymore because he does not want people paying attention to what he does. Additionally, he described situations where law enforcement was involved, including about a week prior, when he threatened a former friend "due to my mind, being in my mind," as well as for suicide calls. In reviewing the evidence of record, the Board finds that the balance of the evidence is at least in equipoise that the Veteran's PTSD warrants a rating of 70 percent throughout the period on appeal. The Board finds the evidence of record supports a level of impairment that more closely approximates the symptoms associated with a 70 percent rating. The May 2018 examination, January 2019 treatment note, and September 2020 testimony all indicate that the Veteran had increased symptoms of depression, anxiety, anger, irritability, and difficulty sleeping and reflect that he experienced occupational and social impairment with deficiencies in most areas. This evidence reflects that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating such as unprovoked irritability, near constant panic and depression, inability to establish and maintain effective relationships, illogical speech, and suicidal ideation. The Veteran also had symptoms that are not listed with a specific rating, such as unclear thinking and social isolation. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. Further, inability to think clearly and social isolation are similar to depression affecting the ability to communicate effectively and an inability to establish and maintain effective relationships, which are contemplated by a 70 percent rating. The overall evidence does not demonstrate the level of impairment associated with a 100 percent rating as the frequency, duration, and severity of the Veteran's symptoms do not rise to the level of total occupational and social impairment. As noted above, the Veteran's symptoms were either contemplated by or are more consistent with a 70 percent rating. The preponderance of the evidence is against a finding that he is totally socially impaired. While the Veteran described having difficulty establishing and maintaining friendships, he has been able to maintain relationships with his family members. Additionally, although there is evidence of suicidal ideation, the Veteran stated he had no intention of following through on these thoughts, and the Veteran is not shown to be a persistent danger to himself or others. Although the Veteran has reported having unclear thinking, the frequency, duration, and severity of these symptoms have not more nearly approximated gross impairment in thought processes or communication, or disorientation to time or place. The evidence also does not indicate that the Veteran has experienced persistent delusions or hallucinations or grossly inappropriate behavior or other symptoms that would more nearly approximate total occupational and social impairment. Although the evidence indicates the Veteran experiences memory loss and difficulty concentrating, the Veteran is receiving a separate 10 percent rating for these symptoms due to his service-connected traumatic brain injury. Therefore, consideration of these symptoms to evaluate his PTSD would be considered pyramiding. In summary, the balance of the evidence is at least in equipoise to establish that a disability rating of 70 percent, but no higher, for the Veteran's service-connected PTSD throughout the appeal period is warranted. REASONS FOR REMAND 1. Entitlement to a compensable rating for left trochanteric bursitis with limited flexion is remanded. 2. Entitlement to a rating in excess of 10 percent for lumbar spine strain with l5-S1 disc bulge is remanded. During his September 2020 hearing testimony, the Veteran stated that his left hip and lumbar spine conditions had gotten worse since his November 2016 VA examination. He described seeing a chiropractor for his back issues before COVID, but the relief was only temporary, and the pain has progressively gotten worse. His back pain prevents him from lifting, and he experiences a lot of nerve pain and numbness in his hands and fingers, while his lower back "feels like it's going to break." As for his hip, the Veteran described how walking increased his hip pain, and he cannot wear jeans due to painful rubbing on his hip and he cannot put socks or shoes on by himself due to pain. Additionally, he lives in a two-story house, and at times cannot go up the stairs due to his hip pain, and he ends up sleeping downstairs on the couch. Therefore, given the evidence of worsening of the Veteran's left hip and lumbar spine conditions since his November 2016 examination and the need for more current findings necessary to rate his conditions, the Board finds new examinations are required. 3. Entitlement to TDIU is remanded. At the Veteran's May 2018 VA psychiatric examination, the Veteran reported that he had been working part-time for his landlord, but had not otherwise worked due to his hip and that if not for his hip, he would be working as a mechanic. At the September 2020 hearing, the Veteran testified that he had not worked full time since he had his hip surgery in 2014. The Board finds this evidence raises a claim of TDIU in conjunction with the Veteran's claim for an increased rating for his left trochanteric bursitis. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the RO has not completed development and initially adjudicated the claim, the Board finds that remand for such development and adjudication is needed. Accordingly, these matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran's claims file any VA treatment records from June 2019 to the present. 2. After completing the development requested in item 1, schedule the Veteran for an in-person examination with a qualified examiner to evaluate the severity of the Veteran's left trochanteric bursitis and his lumbar spine strain with L5-S1 disc bulge. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Complete any development needed on the claim seeking entitlement to TDIU, including sending the Veteran a VA Form 21-8940. Once all needed development is completed, adjudicate the claim. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.