Citation Nr: 21029169 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-43 993 DATE: May 12, 2021 ORDER Entitlement to a rating of 50 percent, but no higher, prior to September 20, 2020, for service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to a rating in excess of 50 percent since September 20, 2020, for service-connected PTSD is denied. REMANDED Entitlement to a rating in excess of 10 percent for a chronic thoracolumbar strain is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect, depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss, decreased concentration, irritability, and difficulty in establishing and maintaining effective work and social relationships. His PTSD did not cause occupational and social impairment in most areas of his life. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 50 percent, but no higher, prior to September 20, 2020, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a rating in excess of 50 percent since September 20, 2020, for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active duty service with the United States Army from January 2010 to November 2012 and was discharged under honorable conditions. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran withdrew his request for a hearing. Then, in March 2020, the Board remanded the Veteran's claim for additional development. The Veteran was afforded new VA examinations. In November 2020, a rating decision granted an increase in the evaluation for PTSD to 50 percent effective September 20, 2020. In February 2021, a supplemental statement of the case (SSOC) was issued and the claims were returned to the Board. Increased Rating Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. In rating cases, 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). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 30 percent prior to September 20, 2020, for service-connected PTSD is granted. See section 2 below. 2. Entitlement to a rating in excess of 50 percent since September 20, 2020, for service-connected PTSD is denied. The Veteran's PTSD is rated under Diagnostic Code 9411, 38 C.F.R. § 4.130. Mental disorders are rated under the General Rating Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130. A 10 percent rating is warranted when there is 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. A 30 percent rating is warranted for 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). A 50 percent rating is warranted for 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. 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 an inability to establish and maintain effective relationships. A 100 percent rating is assigned 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 (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (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, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Veteran contends that he is entitled to an increased evaluation for PTSD. For PTSD, the Veteran is currently rated at 30 percent prior to September 20, 2020, and 50 percent thereafter. On review of all the evidence, the Board finds that the Veteran is entitled to a rating of 50 percent prior to September 20, 2020. The Board finds that a rating in excess of 50 percent after September 20, 2020, is not warranted. In June 2015, the Veteran had a VA examination. The Veteran reported that he was divorced in 2013, but planned on marrying his fiancée with whom he shared a good relationship. He was close to his siblings, but not to any other family members. He had a small group of friends, and he was starting his own independent wrestling company. He was also currently employed with the same employer for two years and six months. The Veteran reported that it was a "good job" and the employer treated him "very well." He was also planning to start school for computer engineering. On examination, the Veteran's appearance was normal, and he exhibited appropriate grooming. The Veteran had a cooperative attitude and his speech was coherent, fluent, and non-pressured. He had a normal mood, proper affect, no delusions, no hallucinations, intact memory, good attention, good judgment, and good insight. The Veteran denied suicidal ideation, and homicidal ideation. He was oriented in all spheres and showing average intelligence. The Veteran denied panic attacks or recent episodes of violence. He did endorse some "night terrors" that he believed were due to added familial problems, and these occurred approximately twice per week. The examiner concluded that the Veteran's symptoms of PTSD included anxiety, suspiciousness, and chronic sleep impairment. The examiner noted that the Veteran once reported to his treating clinician that he would occasionally see shadowy figures upon awakening, but this occurred prior to the period on appeal, and the Veteran has not subsequently endorsed these symptoms. The June 2015 examiner opined that the Veteran had occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In June 2016, a private psychologist completed a Disability Benefits Questionnaire (DBQ) for PTSD. Following examination, the psychologist reported that the Veteran had difficulty concentrating, increased irritability, and hypervigilance. The Veteran also had severe sleep impairment and moderate social impairment. The psychologist described the Veteran's interpersonal relationships as often detached. The Veteran reported about two anxiety attacks a month that lasted about 10 to 15 minutes. The June 2016 psychologist opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The psychologist also reported that the Veteran had depressed moods, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran presented as reticent, terse, and guarded. He reported that his work was a "good place", and he never left a job because of emotional or behavioral factors. He expressed that he experienced anger at the workplace; however, additional details were limited. The Veteran also described recurring dreams of rockets approximately three times in the previous month, which the psychologist assessed as mild overall. The Veteran also endorsed flashbacks, distress related to his previous trauma, and avoidance behaviors. He assessed his own feelings of anger as moderate to severe and occurring daily. The Veteran additionally remarked that he experienced diminished interest or pleasure in his usual activities, though he engaged in new activities, such as going to wrestling matches or shows. Overall, the psychologist confirmed that the Veteran met the criteria for a diagnosis of PTSD. The Veteran rated his occupational impairment due to PTSD as mild, and moderate in other aspects of functioning. The psychologist noted some symptoms of dissociation that occurred once per week and were described as moderate. Overall, the private psychologist concluded that his impairments due to PTSD were more moderate in nature. Then, in September 2020, the Veteran had another VA examination. The Veteran reported that he was divorced and in a new relationship for a year and a half. His new relationship was going well. The Veteran did not see his family often; however, he reported staying in contact with them. He finished and obtained a Bachelor of Science degree in computer engineering. He had been working as a software engineer full time since May 2018. He worried his temper and irritability were problematic at work, but he had no formal complaints against him. The VA examiner noted that the Veteran was not taking any medications for his mental health nor was he currently in therapy. The Veteran stated that he wanted to get back into therapy. He reported night terrors related to service. On examination, the Veteran was mildly anxious, logical, coherent, alert, and oriented in all spheres. He had no suicidal or homicidal ideation. His speech was normal in rate, tone, and volume. The Veteran was cooperative and pleasant. The Veteran's symptoms included depressed moods, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances of mood, and difficulty in establishing and maintaining effective work and social relationships. The September 2020 VA examiner opined that the Veteran had 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 Board additionally considered the Veteran's treatment for PTSD with the VA. The Veteran ceased routine individual mental health treatment around 2015 with a desire to reinitiate treatment expressed in the most recent VA examination. He did engage in family psychoeducation with his prior spouse around 2017 to 2018, as well as marital counseling. VA treatment records do not reflect more serious symptomatology associated with PTSD, such as suicidal ideation, obsessional rituals that interfere with routine activities, illogical or obscure speech, or near-continuous panic or depression that affect the ability to function. The Veteran subsequently denied mental health or depression issues in a December 2020 VA treatment record. Considering the evidence in the light most favorable to the Veteran, the Board finds that his symptoms are most closely analogous to the criteria for a 50 percent rating given their overall severity, frequency, and duration throughout the period on appeal. Specifically, the Board found that the evidence reflects symptoms such as difficulty establishing and maintaining social and work relationships, disturbances of mood, mild memory loss, and chronic sleep impairment. The Veteran also had a flattened affect at times. He exhibited depressed moods, irritability and difficulty concentrating. He also reported difficulty with interpersonal relationships with his wife or girlfriend. He expressed feelings of detachment from others, as well as some trouble dealing with coworkers. However, the evidence does not support a rating any higher than 50 percent at any time during the pendency of this claim. The Veteran was able to complete a college degree in computer science without significant interference from his PTSD reported, and he sought an advanced degree in the field in the future. The Veteran's records suggested that he was able to maintain his employment, even describing one employer as treating him very well. There were no formal complaints about any anger or performance issues reported. The Veteran did not express an inability to maintain effective relationships, only that he experienced some difficulty with them. He has had relationships with various people in his life including siblings, romantic partners, and a small circle of friends. He did not report any periods of violence or total isolation. He also did not report near-continuous panic attacks. Thus, the overall severity, frequency, and duration of his PTSD symptoms is sufficiently represented by the criteria for a 50 percent rating throughout the period on appeal, but no higher. The Board acknowledges that the Veteran reported prior thoughts of suicide around 2012 during his June 2016 private evaluation. However, he has denied suicidal ideation throughout the appellate period. The Veteran's treatment records and examinations through the period on appeal also consistently deny suicidal and homicidal ideation. For example, in treatment records from November and December 2017, the Veteran denied suicidal ideation despite having an increase of symptoms of depressed mood due to difficulty in his marriage. While the Veteran has had ongoing and serious difficulty with PTSD, he does not present with deficiencies in most areas, such as work, school, family relations, judgement, thinking, or mood. In order to meet the level of 70 percent impairment for a mental disorder, a veteran must have symptoms suggestive of the severity of such things 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 an inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130. However, as discussed above, the evidence does not support this level of impairment, and, as such, a rating in excess of 50 percent is denied. In conclusion, considering the benefit of the doubt, the Board finds that a rating of 50 percent is appropriate for the Veteran's service-connected PTSD throughout the period on appeal; however, the preponderance of the evidence of record fails to support a rating in excess of 50 percent. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for a chronic thoracolumbar strain is remanded. Although further delay is regrettable, a remand is necessary to obtain an adequate examination of the Veteran's back disability. The VA examination completed in January 2021 provided an inconsistent and incomplete discussion of functional loss due to pain or flare-ups. The Veteran reported he had constant back pain with prolonged standing or sitting. The Veteran also reported pain at an eight out of ten when in bed. The Veteran stated that some days he was better and some days he was worse. This part of the history suggested that the Veteran had either flare-ups or loss of function due to pain. However, the examination also noted that the Veteran denied flare-ups of back pain. The examiner did not provide any explanation as to additional functional loss after repetitive use over time or during flare ups. The examiner did not explain why the examination was neither medically consistent with nor inconsistent with the Veteran's statements. Thus, the Veteran's lay statements regarding functional impairments due to pain were not adequately considered in the January 2021 VA examination. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." The examiner should elicit relevant information from the Veteran as to flare-ups severity, frequency, duration, or functional loss. Then the VA examiner should estimate the Veteran's functional loss due to flare ups or pain based on all the evidence of record, or explain why such cannot be done. Moreover, before the Board can accept an examiner's statement that an opinion cannot be provided without resort to speculation, it must be clear that this is predicted on a lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner. See Sharp, 29 Vet. App. at 34-37. Accordingly, a new VA examination is necessary to assess the severity of the Veteran's back disability that adequately considers functional loss and additional loss of range of motion due to pain on repetitive use over time or during flare ups. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, schedule the Veteran for a new VA examination with an appropriate clinician to assess the present nature and severity of his back disability. A complete copy of the claims file must be made available to the examiner. The examiner should consider the Veteran's lay reports of symptoms associated with his disability. After a thorough review of the medical and lay evidence of record, the examiner should discuss the following: (a.) Conduct range of motion testing of the Veteran's back disability, expressed in degrees in active motion, passive motion, weight-bearing, and non-weight-bearing (where applicable). If pain on motion is observed, the examiner should indicate the point at which pain begins, where possible. (b.) The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts that he is unable to perform range of motion testing due to pain. (c.) The examiner is also to consider the Veteran's statements regarding his functional limitations, effects on his daily life, and pain due to his back disability. (d.) The examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his lumbar spine due to pain or any of the other symptoms during flare ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare ups and his description as to the extent of functional loss during a flare up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp, 29 Vet. App. at 33. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After completing the above development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a SSOC and afforded the requisite opportunity to respond before the case is remanded to the Board. Hannah Fisher Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.