Citation Nr: 21040962 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-52 577 DATE: July 7, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a cervical spine (neck) disability is reopened. New and material evidence having been received, the claim for entitlement to service connection for a left shoulder disability is reopened. An initial evaluation of 70 percent, but no higher, for a service-connected posttraumatic stress disorder (PTSD) is granted for the entire appeal period. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for right upper extremity radiculopathy is remanded. Entitlement to service connection for left upper extremity radiculopathy is remanded. Entitlement to service connection for dysphagia is remanded. Entitlement to service connection for dystonic activity of the supraclavicular, cervical, scapulothoracic region is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to an increased evaluation for service-connected degenerative arthritis of the spine and IVDS of the thoracic spine, with degenerative joint disease of the lumbosacral spine (thoracic and lumbar spine disabilities) is remanded. FINDINGS OF FACT 1. Evidence received since the April 2013 rating decision is new and material regarding the issues of service connection for neck and left shoulder disabilities. 2. The Veteran's service-connected PTSD has caused severe functional impairment and is manifested by complaints of irritability, hypervigilance, episodes of anger, and strained family relations, without delusions, disorientation, or gross impairment in thought process throughout the appeal period. CONCLUSIONS OF LAW 1. The April 2013 rating decision that denied service connection for neck and left shoulder disabilities is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1104. 2. The criteria for a disability evaluation of 70 percent, but no higher, for a service-connected PTSD have been met for the entire appeal period. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from May 2000 to August 2001, July 9, 2002, until July 30, 2002, and from January 2003 to July 2003. These matters come before the Board of Veterans' Appeals (the Board) on appeal from December 2016 (neck disability, bilateral upper extremity radiculopathy, dysphagia, dystonic activity) and December 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified before the undersigned Veteran's Law Judge (VLJ). A copy of the hearing transcript has been associated with the Veteran's electronic claims file. The Board notes that during the pendency of the appeal, a January 2020 rating decision, granted service connection for bilateral lower extremity radiculopathy, secondary to the service-connected thoracic and lumbar spine disabilities. The Veteran filed a Decision Review Request with the January under the Appeal Modernization Act. As such, while an increased evaluation for the service-connected thoracic and lumbar spine disability is part of the current appeal, the Board does not yet have jurisdiction over the increased rating claims for the bilateral lower extremity radiculopathy claims and they will not be addressed in this decision. 1. New and Material Evidence. The Veteran seeks to reopen the previously denied claims for service connection for neck and left shoulder disabilities. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last, final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 510 - 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran seeks to reopen the previously denied claims for service connection for neck and left shoulder disabilities. The claims were initially considered and denied by the RO in an April 2013 rating decision. The Veteran did not initiate appeal of the decision denying service connection, and he also did not submit any new and material evidence with respect to this claim within the applicable one-year period. See 38 C.F.R. § 3.156(b); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, the decision became final as to the evidence then of record and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In October 2015, the Veteran filed to reopen the claims for service connection for a neck disability. The claims were subsequently denied in a December 2016 rating decision. The Veteran did not initiate appeal of the decision denying service connection, and he also did not submit any new and material evidence with respect to this claim within the applicable one-year period. See 38 C.F.R. § 3.156(b); Jennings, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, the decision became final as to the evidence then of record and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran then filed to reopen the claim for service connection for a neck disability in July 2016. The claims were subsequently considered and denied in a December 2016 rating decision and the Veteran filed a timely notice of disagreement and subsequent appeal. The Veteran filed to reopen the claim for service connection for a left shoulder disability in November 2017. The claims were subsequently considered and denied in a December 2017 rating decision and the Veteran filed a timely notice of disagreement and subsequent appeal. Since the April 2013 rating decision, additional evidence has been received in the form of VA treatment records and testimony from Veteran. The VA treatment records and testimony from Veteran are new because they have not been previously submitted. The newly submitted evidence is also material because it pertains to the basis for the prior denials, that is, that the Veteran's neck and left shoulder disabilities were not caused or aggravated by military service and raises a reasonable possibility of substantiating the claim. The Veteran has provided testimony of an in-service injury regarding the neck and left shoulder disabilities and there is medical evidence documenting treatment for both disabilities. For these reasons, the Board finds that new and material evidence has been received to reopen the claims for service connection for neck and left shoulder disabilities. See 38 C.F.R. § 3.156(a). This new evidence raises a reasonable possibility of substantiating the claims; thus, this evidence is new and material and the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied. Accordingly, the Board has determined that new and material evidence has been received to reopen the claims for service connection for neck and left shoulder disabilities. 2. Increased Evaluation for PTSD. The Veteran contends that the symptoms of his service-connected PTSD meet the criteria for a higher evaluation. After review of the entire record, and resolving all doubt in favor of the Veteran, the Board finds that his service-connected PTSD more closely approximates the 70 percent rating throughout the entire appeal period. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran's service-connected PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, the diagnostic used to rate PTSD. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Reasonable doubt as to the degree of disability will also be resolved in the veteran's favor. 38 C.F.R. § 4.3. Under 38 C.F.R. § 4.130, Diagnostic Code 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 work-like setting); 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association. 38 C.F.R. § 4.130. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). In evaluating psychiatric disorders, the Board is mindful that the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." In February 2018, the Veteran underwent a VA examination to determine the etiology and severity of any mental health disabilities. He reported anxiousness in public, hypervigilance, isolation, and apprehension without fear of a specific event. He further reported strained family relationships including volatility and startle reactions that caused problems with his wife and a distant relationship with his parents. On examination, the Veteran was casually dressed and groomed, alert, cooperative, and oriented to person, place, and time. His judgment was intact, speech rate normal, content of thought was not delusional, and there were no hallucinations. The Veteran's mood was sad and his affect was restricted. He reported some suicidal ideation in the last few years with some preparatory behavior. Diagnostic testing showed significant emotional distress, social disengagement, and self-reports of few positive experiences. The VA examiner diagnosed the Veteran with PTSD and indicated the symptoms resulted in resulted in 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. In November 2019, the Veteran underwent an additional VA examination to determine the severity of his service-connected PTSD. He reported panic attacks every three to six months, intermittent sleep, suicidal ideation, alcohol consumption three to seven days a week, anger, irritability, anxiety, memory issues, and a depressed mood. He reported no hallucinations or symptoms of psychosis. On examination, the Veteran was appropriately dressed, speech was expressive, and he was restless and fidgety. The VA examiner noted a depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less, chronic sleep impairment, mild memory loss, inability to establish and maintain effectiveness relationships, suicidal ideation, and neglect of personal appearance. The VA examiner indicated the Veteran's PTSD resulted in 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. VA treatment records and lay evidence throughout the appeal period are consistent with the VA examinations of records. The Veteran has continually sought treatment for the service-connected PTSD and been noted to have symptoms of anger, isolation, anxiety, and difficulties in personal relationships. Based on the evidence of record, including the lay testimony provided by the Veteran, the symptoms of the service-connected PTSD, more closely approximates the 70 percent disability rating criteria. Therefore, the Board find that throughout the appeal period, considering the anxiety, anger, inability to maintain relationships, and other symptoms, the Veteran's symptoms more closely approximate the 70 percent disability rating. A higher 100 percent evaluation is not warranted at any point during the appeal period. Specifically, the preponderance of the evidence does not indicate that the Veteran had total occupational and social impairment at any point during the appeal period. The Board finds nowhere in the record where the Veteran reported or a VA examiner or treating psychologist indicted that the Veteran displayed impairment of long term memory, memory loss for names of close relatives, own occupation, or own, name, circumstantial, circumlocutory or stereotyped speech, intermittently illogical, obscure, or irrelevant speech, gross impairment of thought process of communication, grossly inappropriate behavior, disorientation to place and time, persistent danger of hurting himself or others, or persistent delusions or hallucinations. Further, at no point has the Veteran reported or a mental health professional noted that the Veteran exhibited illogical speech, gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; or disorientation to time or place. Rather the Veteran has consistently been found to have clear and logical thought with orientation to person, place, and time. The Board notes the Veteran's reports of neglecting personal hygiene but finds that those reports are not supported by the record. Specifically, he has been described as having appropriate grooming and dress during VA treatment sessions over the 4 year appeal period. While he has several symptoms, as discussed above, the record does not reflect they are so frequent or severe to result in total occupational and social impairment. Accordingly, an evaluation in excess of 70 percent is denied. REASONS FOR REMAND 1. The Remaining Claims are Remanded. The Veteran contends that service connection is warranted for a cervical spine disability, bilateral upper extremity radiculopathy, dysphagia, dystonic activity, and a left shoulder disability, claimed as both direct and secondary to service-connected disabilities. The Veteran also contends an increased evaluation for the service-connected thoracic and lumbar spine disabilities are warranted. After review of the evidence, both lay and medical, the Board finds that remands for the claims are necessary to allow for a fully informed opinion. As an initial matter, their anatomical proximity and symptomology have intertwined the claims for the cervical spine, bilateral upper extremity radiculopathy, dysphagia, dystonic activity, shoulder disability, and the service-connected thoracic and lumbar spine disabilities, such that remands for all of the claims to obtain adequate examinations by appropriately qualified examiners are necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). In February 2013, the Veteran underwent an orthopedic examination and denied neck pain. In October 2016, he underwent an additional examination where the examiner diagnosed degenerative arthritis of the spine and intervertebral disc syndrome but opined the disabilities were less likely than not the result of the Veteran's service-connected disabilities. However, the examiner failed to offer an opinion on direct service connection. The Board also notes the January 15, 2017 progress note from Dr. E.M.. where she opined that the Veteran's neck disability and radicular issues were as likely as not related to the thoracic disc protrusions but observes it similarly lacks any rationale. Barr, 21 Vet. App. 303 (2007). Next, the Board further notes the August 2016 VA examination and medical opinions for dysphagia and dystonic activity, however, the opinions provide no rationale and it is unclear whether the examiner attributes the disabilities to the service-connected thoracic spine or nonservice connected cervical spine. As such, a remand for adequate opinions is necessary. Barr, 21 Vet. App. 303 (2007). Next, the Veteran claims entitlement to service connection for a left shoulder disability on both a direct and secondary basis. In November 2018, the Veteran underwent a VA examination to determine the etiology of any left shoulder disabilities. However, the VA examiner only indicated a diagnosis of bilateral radiculopathy. Here, the Veteran is claiming a musculoskeletal left shoulder disability both as the result of an inservice injury and secondary to service-connected disabilities, in addition to bilateral upper extremity radiculopathy. As such a remand is necessary. Barr, 21 Vet. App. 303 (2007). Finally, the Veteran contends the service-connected degenerative arthritis of the spine and IVDS is more severe than the 10 percent evaluation from June 22, 2012 to January 28, 2019, and 20 percent thereafter. While the Veteran indicated a potential satisfaction with the 20 percent evaluation after January 28, 2019, that period of time is still actively part of the appeal. As indicated above, the claims above that are being remained are inextricably intertwined with the increased evaluation claim. Specifically, the etiology of the dysphagia and dystonic activity are unclear from the record and may be a symptom of the service-connected thoracic and lumbar spine disabilities. As such, a remand for an examination is necessary. Barr, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Associate any VA treatment records since October 2019 with the electronic claims file. 2. If possible, the following examinations should be scheduled with a medical doctor specializing in orthopedic disabilities. If such an examiner is not available, then the final examination reports must be reviewed by an orthopedic surgeon. 3. Schedule the Veteran for an examination to determine the etiology of the Veteran's current cervical spine disability. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report and conduct any necessary testing. The examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that the current cervical spine disability had onset in service or is etiologically directly related to active service, or had its onset within one year of the Veteran's separation from service? b) Is it at least as likely as not (50 percent probability or greater) that the current cervical spine disability is caused by any of the Veteran's service-connected disabilities, to include, the thoracic and lumbar spine disabilities? c) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that the cervical spine disability is aggravated (worsened in severity beyond the natural progression of the disease) by any of the service-connected disabilities, to include, the thoracic and lumbar spine disabilities? If the VA examiner opines that the current cervical spine disability is aggravated by any of the service-connected disabilities, he/she should indicate the degree of disability before aggravation and the current degree of disability. The VA examiner must comment on: 1. The Veteran's in-service injury to the neck and reports of continuous pain since. 2. The January 15, 2017 progress note from Dr. E.M.. 4. Schedule the Veteran for an examination to determine the etiology of any current left shoulder disability. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report and conduct any necessary testing. The examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that any current left shoulder disability had its onset in service or is etiologically directly related to active service, or in the case of degenerative arthritis, had its onset within one year of the Veteran's separation from service? b) Is it at least as likely as not (50 percent probability or greater) that any current left shoulder disability is caused by any of the Veteran's service-connected disabilities? c) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that any current left shoulder disability is aggravated (worsened in severity beyond the natural progression of the disease) by any of the service-connected disabilities? If the VA examiner opines that any current left shoulder disability is aggravated by any of the service-connected disabilities, he/she should indicate the degree of disability before aggravation and the current degree of disability. The examiner must comment on the Veteran's report of an in-service left shoulder injury with continuous symptoms since. 5. Schedule the Veteran for an examination to determine the etiology of the current bilateral upper extremity radiculopathy disability. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report and conduct any necessary testing. The examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that any current bilateral upper extremity radiculopathy disability had its onset in service or is etiologically directly related to active service, or had its onset within one year of the Veteran's separation from service? b) Is it at least as likely as not (50 percent probability or greater) that any current bilateral upper extremity radiculopathy disability caused by any of the Veteran's service-connected disabilities? c) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that any current bilateral upper extremity radiculopathy disability is aggravated (worsened in severity beyond the natural progression of the disease) by any of the service-connected disabilities? If the VA examiner opines that any current bilateral upper extremity radiculopathy disability is aggravated by any of the service-connected disabilities, he/she should indicate the degree of disability before aggravation and the current degree of disability. 6. Scheduled for a VA examination to determine the current nature and severity of the service-connected thoracic and lumbar spine disabilities. The claims file must be made available to the examiner for review in conjunction with the examination, and the examination report must reflect that review was accomplished. All indicated tests should be performed and all findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran's back disability, including any neurological manifestations. In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of flexion and extension. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion and/or extension at which such pain begins. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. With regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. If the examiner is unable to estimate functional loss in terms in terms of degrees after physical examination and eliciting the pertinent information about the flare-ups above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran's during a period of flare-up. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Finally, the examiner must discuss any symptomology for the Veteran's dysphagia and dystonic activity of the supraclavicular, cervical, scapulothoracic region and provide and opinion on their etiology. The VA examiner is asked to include a discussion of the August 2016 VA opinions. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.