Citation Nr: 21029732 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-49 743 DATE: May 14, 2021 ORDER Entitlement to an initial 70 percent disability rating for service-connected posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an initial disability rating in excess of 70 percent for service-connected PTSD is remanded. Entitlement to service connection for a right-hand trigger finger injury is remanded. Entitlement to service connection for degenerative disc disease of the neck is remanded. FINDING OF FACT Throughout the entire appeal period, the Veteran's PTSD was manifested by symptoms productive of functional impairment comparable to occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to an initial 70 percent disability rating for service-connected PTSD 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2013 (PTSD) and April 2013 (Finger and Neck) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2021. A copy of the transcript of the hearing is of record. The Board notes that, in the March 2014 Notice of Disagreement, the Veteran disagreed with the RO's denial of service connection for skin cancer due to Agent Orange exposure. However, as this issue was not listed on the Veteran's September 2016 VA Form 9, the issue is not on appeal and therefore not before the Board at this time. Entitlement to an initial disability rating in excess of 30 percent for service-connected PTSD. The Veteran seeks a higher initial 30 percent disability rating for his service-connected PTSD. The Veteran's service-connected PTSD is currently rated as 30 percent disabling for the entire period on appeal under 38 C.F.R. § 4.130 Diagnostic Code (DC) 9411. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing 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 Schedule. If there is a question as to which evaluation should be applied to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In rating mental disorders under the General Rating Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. 38 C.F.R. § 4.130; Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As noted, the Veteran's PTSD is currently rated 30 percent under 38 C.F.R. § 4.130, DC 9411, of the General Rating Formula for Mental Disorders (General Formula). Relevant to the issue on appeal, under the General Formula, a 30 percent rating is assigned 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; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is assigned for 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. Id. A maximum 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. 38 C.F.R. § 4.130, General Formula for Rating Mental Disorders. In this case, the Board finds that the evidence of record demonstrates the Veteran's service-connected PTSD warrants an initial 70 percent disability rating for the entire period on appeal effective January 11, 2011. In that regard, the Board notes the Court of Appeals for Veterans Claims (Court) held that the language of the general rating formula "indicates that the present of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas." See Bankhead, 29 Vet. App. at 22. The court also held that "insofar as the Board required evidence of more than thought or thoughts to establish the symptom of suicidal ideation, it erred." Id. In this case, the Veteran has consistently reported passive thoughts of suicidal ideation. Specifically, the Veteran was afforded an initial PTSD VA examination in February 2013. The VA examiner acknowledged that Veteran's report of regular passive suicidal ideation though he denied having any current suicidal or homicidal ideation, plan, or intent. See February 2013 VA examination. The VA examiner also endorsed the Veteran's PTSD was manifested by symptoms including depressed mood, anxiety, and chronic sleep impairment. Id. In January 2017, the Veteran sought mental health treatment at a VA medical center. The Veteran reported PTSD symptoms including vivid dreams/nightmares, three to four times each week; avoided sleeping; drinking; always watching for a threat; hypervigilance; flashbacks; difficulty concentrating; difficulties in his relationships; and did not participate in family functions. See January 2017 VA treatment records. In a February 2017 PTSD assessment, the Veteran further reported difficulty trusting others; few interpersonal relationships outside of his family; anxiety; avoids crowded places; would not sit with his back to a door and must sit in the corner of a restaurant in order to eat; and checks locks several times per night. See February 2017 VA treatment records. The VA physician noted the Veteran had passive thoughts of suicide. Id. In March 2014, the Veteran reported his PTSD symptoms included anxiety/panic attacks several nights a week; nightmares manifesting in the feeling of a sharp blade and agonizing pain when dreaming; constantly forgetting the basics and had to make lists of things to do or notes to help him remember; had memory lapses more and more; and difficulty with trusting others. See March 2014 Correspondence. At a March 2021 hearing before the Board, the Veteran testified that he obsessively locks the doors; has to watch door when going to restaurants; cannot have his back to the door; gets panic attacks in crowded places; wife has to remind him to take a shower and brush his teeth; gets lost often and has some disorientation to time and place, such as forgetting where he is going while driving; does not trust people and does not have any close friends; has irritability; and had suicidal ideation at the time he decided to see the VA psychiatrist. See March 2021 Hearing Transcript. The Veteran's spouse also testified that the Veteran does not want to go out and just wants to stay home; does not care about people; has anger and irritability issues; has horrible nightmares; and experiences migraines. Id. In resolving reasonable doubt in favor of the Veteran, and in considering the frequency, severity, and duration of the Veteran's symptoms, the Board finds that based on such symptoms and demonstrated functional impairment, the Veteran's overall disability picture more close approximated occupational and functional impairment with deficiencies in most areas for the entire period on appeal. Specifically, based on the Court's reasoning in Bankhead, the Veteran's suicidal ideation meets the criteria for a 70 percent disability rating. See Bankhead, 29 Vet. App. at 22. Additionally, the Veteran reported obsessional rituals that interfere with routine activities, such as constantly locking the doors and only being able to sit in a corner at restaurants. In light of the foregoing, the Board finds that an initial 70 percent disability rating is warranted for the Veteran's PTSD for the entire period on appeal, effective January 11, 2011. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411; Gilbert v. Derwinski, 1 Vet. App. 40, 53 (1990). The Board notes this decision represents a partial grant of the benefit sought on appeal and recognizes that further disposition of this issue would be premature. Accordingly, additional evidentiary development is necessary and is outlined in the Remand portion of the decision below. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to an initial disability rating in excess of 70 percent for service-connected PTSD is remanded. During the March 2021 hearing before the Board, the Veteran indicated his PTSD symptoms have worsened since his most recent VA examination in December 2019. See March 2021 Hearing Transcript. In an April 2021 statement, the Veteran described flashbacks of Vietnam, including times when he can see people that he killed, and deceased Marine Corps friends and brothers. The Veteran also explained that he experiences hallucinations during which he can see the wall move, a color and grey smoke moving around it; he also see silhouettes. See VA 21-4138 received April 2021 VA's duty to assist includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of a claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran's disability, a new VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In light of the above, the Board finds that a new VA examination is warranted so that the current nature and severity of the Veteran's service-connected PTSD may be determined. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). Accordingly, remand of the issue of entitlement to an initial disability rating in excess of 70 percent for service-connected PTSD for a new examination is warranted. Entitlement to service connection for a right-hand trigger finger injury is remanded. The Veteran seeks service connection for a right-hand trigger finger injury. See April 2011 Correspondence. The Veteran contends that his drill instructor put his trigger finger near the rifle shoulder support and lifted it up squeezing his finger between the end of the rifle and the shoulder support, causing pain. Id. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a right-hand trigger finger injury because the Veteran has not yet been afforded a VA examination in relation to his claim. The VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, the Board finds that the low threshold for provision of a VA examination described in McLendon has been met. In April 2009, the Veteran was diagnosed with mild degenerative joint disease. See April 2009 VA treatment records. The VA physician noted the Veteran has a history of injury to his right hand with chronic pain. Id. A March 2009 physician noted the Veteran's report of a right index finger injury while in service resulting in pain in his previous medical history. See March 2009 VA treatment records. The Veteran explained that the injury to his right trigger finger was a result of a punishment for missing targets during training in a punishment called "Maggie drawers." See March 2014 Correspondence; March 2021 Hearing Transcript. The Veteran provided a buddy statement of a fellow Marine who corroborated the Veteran's statement that the "Maggie drawers" punishment was a common practice of the drill instructors in boot camp and that the mobility of the Veteran's finger has deteriorated and causes constant pain. See April 2021 buddy statement. Given these circumstances, remand is necessary for a VA examination to determine the nature and etiology of the Veteran's diagnosed right trigger finger injury. See McLendon, 20 Vet. App. at 83-86. Entitlement to service connection for degenerative disc disease of the neck is remanded. The Veteran seeks service connection for degenerative disc disease of the neck. See January 2011 VA Form 21-526. The Veteran contends that he injured his neck after falling from a climbing rope while in boot camp. See April 2011 Correspondence. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a degenerative disc disease of the neck because the Veteran has not yet been afforded a VA examination in relation to his claim. In this case, private treatment records demonstrate the Veteran has been diagnosed with degenerative disc disease of the neck since at least April 1996. See April 1996 private treatment records. The Veteran contends that he experienced pain his neck since service and finally sought in treatment in 1995. See April 2011 Correspondence. However, private and VA treatment records appear to relate the Veteran's neck disability to a work-related injury. See March, April, June, and July 1996 private treatment records; July 2009 and August 2009, June 2012, and June 2014 VA treatment records. In support of his claim, the Veteran provided a November 2017 private medical opinion. The private examiner opined that the damage of the approximate age of the Veteran's neck agrees with the Veteran's claims of injury that more likely than not occurred while on active duty. See November 2017 private medical opinion. However, the private examiner did not provide any rationale for the medical opinion offered. However, in light of this evidence, the Board finds that the low threshold to afford the Veteran with a VA examination described in McLendon has been met. See McLendon, 20 Vet. App. at 83-86. As such, given these circumstances, remand is necessary for a VA examination to determine the nature and etiology of the Veteran's diagnosed neck disability. Id. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination with an appropriate clinician to determine the current nature and severity of his service-connected PTSD. The claims file and a copy of this Remand must be made available to the clinician to review. The examiner must include all testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations and functional impairment related to the Veteran's service-connected PTSD. The examiner must consider and address the Veteran's April 2021 statement concerning flashback and hallucinations he experiences. It would be immensely helpful to the Board if the examiner can clarify the frequency of the flashbacks and hallucinations and whether the Veteran has experienced them throughout the period on appeal. A complete rationale should be given for all opinions and conclusions expressed. The examiner must consider the Veteran's lay statements, including testimony provided at the March 2021 hearing before the Board. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's right-hand trigger finger injury. The record and a copy of this Remand must be made available to and reviewed by the examiner. The examiner is asked for the following: a. Identify by any right-hand finger disability by either (1) diagnosis or (2) functional impairment. b. As to each right-hand finger disability identified, the examiner must opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any right-hand finger disability had its onset during service or is otherwise etiologically related to an in-service event, injury, or disease. A complete rationale should be given for all opinions and conclusions expressed. The examiner is requested to consider and address the Veteran's lay statements, including the March 2014 Correspondence, April 2021 buddy statement, and March 2021 Hearing Transcript, concerning the "Maggie Drawers" procedure. In responding to the above, the examiner is requested to address the following: (i.) What type of symptoms would have been caused by the "Maggie Drawers" procedure if the right-hand trigger finger had been involved? (ii.) Is there any medical reason to accept or reject the proposition that any right-hand trigger injury sustained during the "Maggie Drawers" procedure could have led to the Veteran's current right-hand finger disability? If the VA examiner cannot provide an opinion without resorting to speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's degenerative disc disease of the neck. The record and a copy of this Remand must be made available and reviewed by the examiner. The examiner must opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's neck disability had its onset during service or is otherwise etiologically related to an in-service event, injury, or disease. A complete rationale should be given for all opinions and conclusions expressed. The examiner must consider and address the Veteran's lay statements regarding falling from a climbing rope during boot camp, and the November 2017 private examiner's medical opinion. In responding to the above, the examiner is requested to address the following: a. What type of neck symptoms would have been caused by a fall from a climbing rope? b. Is there any medical reason to accept or reject the proposition that the fall from a climbing rope injury could have led to the Veteran's current neck disability? If the VA examiner cannot provide an opinion without resorting to speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. P. Moore, 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.