Citation Nr: 21028556 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-03 979 DATE: May 11, 2021 ORDER Entitlement to an initial disability rating of 70 percent for posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI) is granted. REMANDED Entitlement to an initial disability rating higher than 10 percent for painful motion of the right hip, status post right hip stress fracture is remanded. Entitlement to an initial disability rating higher than 0 percent for limitation of abduction, adduction, internal and external rotation of the right hip status post right hip stress fracture is remanded. FINDING OF FACT From March 13, 2015, the Veteran's PTSD with TBI has produced occupational and social impairment that is less than total, but that produces deficiencies in work, school, family relations, judgment, thinking, and mood. CONCLUSION OF LAW From March 13, 2015, the criteria for a 70 percent disability rating for PTSD with TBI have been met. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.124A, 4.130, Diagnostic Codes 8045, 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 2004 to November 2009. In a March 2015 claim, she sought service connection for multiple disorders including PTSD and right hip fracture. In a December 2016 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection, effective March 13, 2015, for PTSD. The RO assigned a disability rating of 50 percent. The RO granted service connection, effective March 13, 2015, for right hip disability status post right hip stress fracture. The RO evaluated three right hip disorders separately, assigning a 10 percent rating for painful motion, a 0 percent rating for limitation of abduction, adduction, internal and external rotation, and a 0 percent rating for limited flexion. In a January 2017 rating decision, the RO continued the 50 percent rating for PTSD. The Veteran appealed to the Board of Veterans' Appeal (Board) for higher initial ratings for PTSD, right hip painful motion, and right hip limitation of abduction, adduction, internal and external rotation. In August 2017 the Veteran submitted a claim for service connection for TBI. In a December 2017 rating decision, the RO granted service connection for TBI. The RO evaluated the Veteran's PTSD with TBI as one disability. The RO continued a 50 percent rating for that disability. In October 2020 the Veteran had a Board virtual hearing before the undersigned Veterans Law Judge. 1. Disability rating for PTSD with TBI The Veteran appealed the initial 50 percent rating assigned for his PTSD with TBI. VA has established separate service connection and a separate rating for migraine headaches associated with the Veteran's PTSD and TBI. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court also has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim for an increased rating was filed until a final decision is made. See Hart. v. Mansfield, 21 Vet. App. 505 (2007). The Court has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The rating schedule provides at 38 C.F.R. §4.130 a General Formula for Mental Disorders, as follows: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 100 percent Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 70 percent Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 50 percent Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 30 percent Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 10 percent A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 0 percent The rating schedule evaluates TBI under 38 C.F.R. § 4.124A, Diagnostic Code 8045. That code provides that there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. VA is to evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified. However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings for mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, VA is to evaluate emotional/behavioral symptoms under the criteria in the table titled Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified. VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. That list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, VA is to evaluate under the most appropriate diagnostic code. VA is to evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation. VA is to combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled total. However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than total, since any level of impaired consciousness would be totally disabling. VA is to assign a 100-percent evaluation if total is the level of evaluation for one or more facets. If no facet is evaluated as total, VA is to assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. The Veteran's claims file contains records of VA medical and mental health consultations from 2015 forward. In a July 2016 statement, the Veteran wrote that, since traumatic events in service, she could not tolerate crowds or noise. She related distrust of others, short term memory loss, impaired focus, limited sleep, hypervigilance, depression, anger, upset, withdrawal, continuous stress, and panic attacks. On VA examination in September 2016, the Veteran described traumatic experiences during service. She reported nightmares, flashbacks, intrusive memories, depressed mood, avoidance behaviors, social isolation, difficulty sleeping, irritability, verbal outbursts, and hypervigilance. She reported that she worked selling diabetic insulin pumps. She stated that most of her work could be done from home, and that she was most comfortable and effective when not interacting with people. She reported that she avoided loud environments and crowded setting. She indicated that she had lost friendships due to her irritable mood, temper, and social isolation. She stated that she attended church weekly. The examiner observed anxious affect and dysthymic mood. In VA treatment in December 2016, the Veteran reported work overload and coping skills. She reported anxious and depressed feelings nearly every day and trouble concentrating more than half the days. She was noted to have persistent cognitive impairment. She also had photophobia, balance difficulties, memory problems, impaired concentration. A family member reported that the Veteran needed help with household tasks and other daily activities. On testing the Veteran had impaired memory for recall after five minutes. Her speech was fluent but slowed. In VA treatment in January 2017, the Veteran reported that she forgot to change clothes until reminded. She stated that, after incidents of leaving the stove on, she avoided using the stove. She reported racing thoughts, nightmares, and sleep limited to three to four hours per night. In February 2017 she reported that she could not tolerate public settings. She related persistent irritability and angry verbal outbursts. She described her memory as about 25 percent of what it was before her TBI. In May 2017, testing showed impairment of memory, motor functions, executive functions, processing speed, and mood functioning. Intellectual functioning was estimated to be significantly below pre-injury functioning. In an August 2017 statement, the Veteran wrote that her PTSD produced panic attacks and high levels of deficiencies in judgment, social functioning, work, school, and mood. In a VA TBI examination in October 2017, the Veteran reported head injury in service from an IED explosion that hit her vehicle. She stated that she lost consciousness. She reported that a few days later she noticed memory problems and headaches. She related that memory issues continued after service. She stated that she had behavior issues, PTSD, and anxiety. She reported that she forgot what people said and forgot appointments that were not written down. She stated that she had forgotten to put milk back in the refrigerator and forgotten to turn off water, her iron, and her stove. The examiner found complaints of mild problems with memory, attention, concentration, and executive functions. The examiner found that she had subjective symptoms that did not interfere with work, daily living, or relationships. On VA examination in December 2017, the Veteran reported that she was laid off in January 2017 due to irritability and agitation from interactions with people, slowed performance, and trouble managing the workload. She stated that presently she was in school for a healthcare occupation. She indicated that she had to reduce her internship hours because of her intolerance for the noise, people, and smells. She related ability to perform activities of daily living, but reduced motivation for those activities at times. She reported history of homicidal ideation, without intention or plans. The examiner observed that the Veteran was oriented and had appropriate behavior. She had poor eye contact, depressed mood, and flat affect. There was no indication of psychosis or mania. The examiner found that the Veteran's PTSD produced occupational and social impairment with reduced reliability and productivity. In a May 2018 statement, the Veteran described traumatic experiences, including head injury, during her service and her reactions to those events. She wrote that after service she continued to experience agitation, nightmares, and night sweats. She reported intolerance for sunlight, noise, and people. She reported that when driving during the day she became disoriented. She reported difficulty with speech. She described periods of feeling dissociated. She related alternating between anger and emotional numbing. She reported impaired concentration and memory. She reported suicidal thoughts. On VA examination in May 2018, the Veteran reported having nightmares every night. She related having intrusive distressing memories every day, for hours at a time. She stated that she had panic attacks a few times per week. She indicated that being near people was one of the triggers for panic attacks. She stated that she avoided public settings such as shopping, church, movie theaters. She stated that she did not socialize at all and had no close connections or relationships. She reported difficulty concentrating, with slowed reading and reduced comprehension. She related angry impulses in which she threw, broke, and damaged her possessions and home. She reported impaired sleep, limited to three to four hours a night. She stated that earlier that year she had suicidal ideation. The examiner found that the Veteran's PTSD produced occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. In July 2020 the Veteran began private mental health counseling. She reported PTSD symptoms including three or four flashbacks a week and two or three nightmares a week. She related trouble falling asleep, poor quality sleep, and about four hours of sleep a night. She reported aner, irritability, and agitation. From August 2020 she was on medication for anxiety. In the October 2020 Board hearing, the Veteran reported that her PTSD and TBI are manifested by impairment of focus and concentration that slowed her performance of work tasks and caused her to miss work five to six days per month. She related impairment of memory and executive function, such that she moved in with her sister and needed her reminders to eat, bathe, take medications, and attend medical appointments. She stated that she had panic attacks at least four times a month. She reported intermittent agitation and impairment of impulse control, with crying spells and episodes of throwing and breaking things. She stated that she was uneasy around people. She related that she limited interactions to a small number of family members. She noted that she changed jobs in part to reduce interpersonal interaction, and that she shopped at odd hours to limit exposure to people. Treatment and examination records and the Veteran's statements present a fairly consistent PTSD and TBI disability picture from 2015 forward. Symptoms and manifestations including but not limited to anxiety, sleep impairment, intolerance of interaction with people, panic attacks, impaired independent performance of daily activities, and intermittent suicidal ideation have produced occupational and social impairment with deficiencies in work, school, family relations, judgment, thinking, and mood. The disability picture meets the criteria for a 70 percent rating under the General Rating Formula for Mental Disorders. The occupational and social impairment produced by the Veteran's PTSD and TBI have been less than total. She has remained oriented under most circumstances, able to hold some employment, and able to interact acceptably with a few family members. The disability picture has not met or approximate the criteria for a 100 percent rating. Her impairment largely is from symptoms and manifested attributable to both her PTSD and her TBI. She has not had severely impaired judgment, consistent disorientation, severely decreased motor activity, or severely impaired visual spatial orientation. Her PTSD and TBI have not met or approximated the TBI criteria for a rating higher than 70 percent. The Board grants an initial rating of 70 percent. REASONS FOR REMAND 1. Disability rating for painful motion of the right hip, status post right hip stress fracture The Board is remanding this issue for additional examination. The Veteran appealed the initial 10 percent rating that the RO assigned for this aspect of his right hip disability. The report of a VA examination in September 2016 noted the ranges of motion of the Veteran's right hip and noted pain on motion. The examiner found that pain, weakness, fatigability, and incoordination did not limit function of the hip during flare-ups or with repeated use of the hip over time. In the October 2020 Board hearing, the Veteran reported right hip pain requiring cushioning with sitting and in bed, limiting endurance for standing and driving, requiring a cane, and precluding use of stairs. As the Veteran has reported severity and types of hip impairment that were not addressed in the VA examination, the Board is remanding the rating issue for a new examination to obtain more complete and relevant findings. 2. Disability rating for limitation of abduction, adduction, internal and external rotation of the right hip status post right hip stress fracture The Board is remanding this issue for additional examination. The Veteran appealed the initial 0 percent rating that the RO assigned for this aspect of his right hip disability. The report of a VA examination in September 2016 noted the ranges of motion of the Veteran's right hip and noted pain on motion. The examiner found that pain, weakness, fatigability, and incoordination did not limit function of the hip during flare-ups or with repeated use of the hip over time. In the October 2020 Board hearing, the Veteran reported right hip pain requiring cushioning with sitting and in bed, limiting endurance for standing and driving, requiring a cane, and precluding use of stairs. As the Veteran has reported severity and types of hip impairment that were not addressed in the VA examination, the Board is remanding the rating issue for a new examination to obtain more complete and relevant findings. The matters are REMANDED for the following action: 1. For the VA examination requested below, schedule the examinations when, in the opinion of the Veteran, and in the opinion of an appropriate official at a VA medical facility near the Veteran, it is reasonably safe, in light of local conditions with regard to the COVID pandemic, to perform in-person examinations. (Continued on the next page) 2. Schedule the Veteran for a VA examination to address the current manifestations of his right hip disability. Provide the Veteran's claims file to the examiner for review. Ask the examiner to review the claims file and examine the Veteran. Ask the examiner to obtain history as to any aids in standing, walking, stair use, or other functions necessitated by the Veteran's right hip disability. Ask the examiner to conduct all necessary tests of the function and functional impairment of her right hip, specifically including findings as to ranges of motion, whether there is pain on active and passive motion, and whether there is pain on motion with and without weightbearing. Ask the examiner to note the ranges of motion of her left hip for comparison. Ask the examiner to report whether her right hip has functional impairment due to pain, weakness, fatigability, or incoordination, or with repeated use or flare-ups. Ask the examiner to describe any functional impairment from such factors as equivalent to degrees of additional loss of motion, if feasible. 3. Then review the expanded claims file and review the remanded claims. If any claim remains is not granted to the Veteran's satisfaction, issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Then return the case to the Board for appellate review, if otherwise in order. K. PARAKKAL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. J. Kunz, 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.