Citation Nr: 21040232 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-56 111 DATE: July 2, 2021 ORDER A disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) for the period on appeal prior to May 26, 2020 is denied. A disability rating of 70 percent, but not in excess thereof, is granted for PTSD from May 26, 2020, subject to the law and regulations governing the award of monetary benefits. REMANDED Entitlement to a disability rating in excess of 10 percent for lumbar spondylosis is remanded. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a compensable disability rating for right wrist strain is remanded. Entitlement to service connection for vertigo with hearing loss, to include as secondary to service-connected tinnitus, is remanded. Entitlement to service connection for a heart disability, claimed as heart palpitations/arrhythmia, to include as secondary to service-connected PTSD, is remanded. Entitlement to service connection for residuals of a tonsillectomy is remanded. FINDINGS OF FACT 1. During the period on appeal prior to May 26, 2020, the Veteran's PTSD was not shown to have been productive of occupational and social impairment with reduced reliability and productivity or more severe occupational and social impairment. 2. From May 26, 2020, the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, or mood. 3. For the period from May 26, 2020, the Veteran's PTSD has not been productive of total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for an award of a disability rating in excess of 30 percent for PTSD for the period prior to May 26, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9411. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of a disability rating of 70 percent, and not in excess thereof, for PTSD for the period from May 26, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1993 to May 2013. His decorations include the Air Force Commendation Medal, the Air Force Achievement Medal with one Oak Leaf Cluster, and the Meritorious Unit Award with one Oak Leaf Cluster. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In March 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Higher Rating for PTSD Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). For the entire period on appeal, the Veteran has been in receipt of a 30 percent rating for PTSD pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, 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, and mild memory loss (such as forgetting names, directions, or 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; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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. A total schedular rating of 100 percent is warranted 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 mental and personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms in the rating criteria are meant to serve as 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). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate, equivalent rating will be assigned. Id. at 443. 1. A disability rating in excess of 30 percent for PTSD for the period on appeal prior to May 26, 2020 is denied. For the reasons set forth below, the Board finds that a disability rating in excess of 30 percent is not warranted for the Veteran's PTSD for the period on appeal prior to May 26, 2020. Higher ratings are available for occupational and social impairment with reduced reliability and productivity; for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, or mood; or for total occupational and social impairment. The evidence weighs against a finding of such impairment during the period in question. The Veteran underwent a VA examination in May 2013. He reported that he was married and divorced twice, that he had three children, that he saw two of them every other weekend but had only seen his older son once, that he had a close friend, and that he did not socialize much but denied having any significant social problems. With respect to occupational history, the Veteran reported that he was in school working toward a degree and that he was looking for employment in logistics or project management. The examiner assessed that the Veteran's PTSD was productive of occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or that his symptoms were controlled by medication, with noted manifestations of anxiety; chronic sleep impairment; mild memory loss such as forgetting names, directions, or recent events; and difficulty in establishing and maintaining effective work and social relationships. The level of occupational and social impairment associated with the Veteran's PTSD, as assessed by the May 2013 VA examiner, was arguably consistent with a 10 percent rating under the general rating formula for mental disorders. However, the RO resolved doubt in favor of the Veteran and awarded him a 30 percent rating based on his overall occupational and social impairment. See January 2014 rating decision. The evidence, to include treatment records throughout this period, does not otherwise show that the Veteran's service-connected PTSD more nearly approximated occupational and social impairment with reduced reliability and productivity so as to warrant a 50 percent rating under the applicable criteria. While the May 2013 VA examiner noted that the Veteran's PTSD was productive of difficulty in establishing and maintaining effective work and social relationships, which is one of the symptoms listed in the criteria for a 50 percent rating, the examiner assessed that the overall frequency, severity, and duration of the Veteran's symptoms were such that his condition was productive of occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or that his symptoms were controlled by medication. That assessment is consistent with the other available evidence relative to that time. In light of the foregoing, the Board finds that the totality of the evidence, to include the Veteran's treatment records, reflect that the frequency, duration, and severity of his PTSD symptoms did not result in social and occupational impairment that more nearly approximated the criteria for a 50 percent evaluation during the period on appeal prior to May 26, 2020. The appeal of this issue is, therefore, denied. 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411. 2. A disability rating of 70 percent is granted for PTSD from May 26, 2020. As to the period on appeal from May 26, 2020, the Board finds that the evidence is in relative equipoise as the matter of whether an evaluation of 70 percent is warranted for the Veteran's PTSD. As noted previously, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. From May 26, 2020, the Board is satisfied that the Veteran's disability picture more closely approximates the criteria required for that rating. The Veteran submitted a May 26, 2020 PTSD disability benefits questionnaire (DBQ) by private clinicians, S.P., PhD, and S.S., PhD., who assessed that the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood due to symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss such as forgetting names, directions, or recent events, impaired judgment, disturbances to motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or worklike setting, and impaired impulse control, such as unprovoked irritability with periods of violence. Based on that evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that the frequency, severity, and duration of his psychiatric symptoms have caused social and occupational impairment that more nearly approximates the criteria for a 70 percent rating for the period from May 26, 2020. The Board further finds that an evaluation in excess of 70 percent is not warranted for the Veteran's PTSD for the period from May 26, 2020. A higher rating would be warranted if the Veteran's condition was causative of total occupational and social impairment. Here, the evidence weighs against such a finding. The Veteran's treatment records and other evidence relevant to the period at issue do not establish the presence of total social and occupational impairment. The May 2020 DBQ reflects that the Veteran reported that he is running his own trucking company, albeit by himself, which indicates that his capacity for occupational functioning is not totally impaired. Likewise, although his condition is causative of some impairment in his capacity for social relationships, total social impairment has not been demonstrated. For these reasons, the Board finds that an evaluation in excess of 70 percent is not warranted for the period from May 26, 2020. 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for lumbar spondylosis is remanded. 2. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. 3. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. 4. Entitlement to a compensable disability rating for right wrist strain is remanded. At the March 2021 Board hearing, the Veteran testified that his lumbar spine, lower extremity radiculopathy, and right wrist disabilities had increased in severity since the time of his most recent VA examination in May 2013. In light of his testimony, new examinations are warranted. See, e.g., Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 5. Entitlement to service connection for vertigo with bilateral hearing loss, to include as secondary to service-connected tinnitus, is remanded. The Veteran asserts that he has vertigo with bilateral hearing loss that began in service as a result of exposure to loud noises while working on flight lines. Alternatively, he asserts that his vertigo and hearing loss are secondary to his service-connected tinnitus. Service treatment records confirm that the Veteran was exposed to loud noise during service. See, e.g., January 1999, May 2000, and June 2001 service treatment records. The report of a May 2013 VA audiology examination shows that he did not have a hearing loss "disability" at the time of that examination, as VA defines it. See 38 C.F.R. § 3.385. At the March 2021 Board hearing, the Veteran testified that his hearing loss had increased in severity since he was last examined by VA in May 2013. In light of his testimony, a new examination is warranted. See, e.g., Snuffer, 10 Vet. App. at 403. Moreover, the Veteran has asserted that his vertigo is secondary to his service-connected tinnitus. See, e.g. March 2021 Board hearing transcript. A medical opinion is needed to address that theory of entitlement. 6. Entitlement to service connection for a heart disability is remanded. The Veteran asserts that he has a heart disability, claimed as heart palpitations/arrhythmia, that began in service. Alternatively, he asserts that his claimed heart disability is secondary to his service-connected PTSD. Service treatment records reflect that the Veteran was treated for complaints of heart palpitations, heart flutter, and irregular heartbeats in 1999, 2000, 2001, 2005, 2007, 2008, and 2010, as well as for angina, premature ventricular contractions (PVCs), and premature atrial contractions (PACs) in 2002, 2003, and 2004. The Veteran underwent a VA heart conditions examination in May 2013. The examiner noted that the Veteran had benign PVCs and that the etiology was unknown (possibly over-the-counter supplements). It is unclear from the record whether the Veteran has a current heart disability or has had one at any point during the period on appeal. More specifically, it is unclear if the Veteran's palpitations/arrhythmias have caused functional impairment resulting in loss of earning capacity. A remand for an addendum opinion is warranted 7. Entitlement to service connection for residuals of a tonsillectomy is remanded. The Veteran asserts that he has current residuals of an in-service tonsillectomy. Specifically, he contends that the tonsillectomy caused scarring in the back of his throat, which has resulted in an occasional gagging sensation. Service treatment records show that the Veteran underwent a tonsillectomy during service in 2003. He later underwent a VA examination in May 2013. The examiner noted a diagnosis of status-post tonsillectomy, but did not clearly specify whether the Veteran had any current residuals of the in-service tonsillectomy. Moreover, it appears that the Veteran did not report to the examiner at that time that he had scarring in the back his throat which resulted in an occasional gagging sensation. Under the circumstances, a remand for an addendum opinion is required in order to ascertain whether the Veteran has current residuals of the in-service tonsillectomy. These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination of his service-connected lumbar spine disability. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, and in weight bearing and non-weight bearing, if possible. If such testing is not feasible, the examiner should explain why. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time at the time of examination,, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner's conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. 4. Also arrange to have the Veteran scheduled for an examination of the service-connected radiculopathies of his lower extremities. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to the relevant rating criteria. 5. Arrange, further, to have the Veteran scheduled for an examination of his service-connected right wrist disability. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, with the range of the opposite undamaged joint. If such testing is not feasible, the examiner should explain why. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time at the time of examination, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner's conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. 6. Arrange to have the Veteran scheduled for a VA examination of his claimed vertigo, to include an updated examination for hearing loss. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner is requested to provide answers as to each of the following questions: (a) Does the Veteran currently have a diagnosis of vertigo, or has he had any such diagnosis since his separation from service in May 2013? If so, are there objective findings supporting a diagnosis of vestibular dysequilibrium? (b) If it is the examiner's conclusion that the Veteran has had a diagnosis of vertigo at any point since May 2013, the examiner is requested offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the vertigo disability had its onset in, or is otherwise attributable to, active duty service, to include exposure to loud noise during service. (c) Does the Veteran have a current hearing loss disability in either ear? (d) If it is the examiner's opinion that the Veteran has a current hearing loss disability in either ear, the examiner is requested offer an opinion as to whether it is at least as likely as not that the disability had its onset in, or is otherwise attributable to, active duty service, to include exposure to loud noise during service. (e) If it is the examiner's opinion that it is unlikely that the Veteran's vertigo was incurred in service or is otherwise related to service, the examiner should render a further opinion with respect to whether it is at least as likely as not that the disability has been (i) caused or (ii) aggravated (i.e., worsened beyond normal progression) by the Veteran's service-connected tinnitus. (f) If it is the examiner's opinion that it is unlikely that the Veteran's hearing loss was incurred in service or is otherwise related to service, the examiner should render a further opinion with respect to whether it is at least as likely as not that the disability has been (i) caused or (ii) aggravated (i.e., worsened beyond normal progression) by the Veteran's service-connected tinnitus. A complete medical rationale for all opinions expressed must be provided. 7. Arrange for the claims file to be reviewed by the VA examiner who prepared the May 2013 VA heart conditions examination report (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum opinion. If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner is requested to provide answers as to each of the following questions: (a) Are the Veteran's complaints of irregular heartbeats, arrhythmia, and PVCs considered manifestations of a diagnosable disability? In this regard, is it at least as likely as not (i.e., is it 50 percent or more probable) that the Veteran's irregular heartbeats, arrhythmia, and PVCs have caused functional impairment? (b) If it is the examiner's opinion that the Veteran has a diagnosable heart disability or that irregular heartbeats, arrhythmia, and PVCs have caused functional impairment, the examiner is requested offer an opinion as to whether it is at least as likely as not that the disability had its onset in, or is otherwise attributable to, active duty service. (c) If it is the examiner's opinion that it is unlikely that the Veteran's heart disability was incurred in service or is otherwise related to service, the examiner should render a further opinion with respect to whether it is at least as likely as not that the disability has been (i) caused or (ii) aggravated (i.e., worsened beyond normal progression) by the Veteran's service-connected PTSD. A complete medical rationale for all opinions expressed must be provided. 8. Arrange for the claims file to be reviewed by the VA examiner who prepared the May 2013 VA sinusitis, rhinitis and other conditions of the nose, throat, larynx and pharynx examination report (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum opinion. If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has current residuals of an in-service tonsillectomy, or has had any such residuals since his separation from service. In providing the above-referenced opinion, the examiner is requested to address the significance of the Veteran's assertions to the effect that the in-service tonsillectomy caused scarring in the back his throat, which has resulted in an occasional gagging sensation. A complete medical rationale for all opinions expressed must be provided. 9. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.