Citation Nr: 21042422 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 14-38 201A DATE: July 13, 2021 ORDER A rating of 70 percent for the service-connected posttraumatic stress disorder (PTSD) from October 1, 2007 is granted. A rating greater than 50 percent for the service-connected PTSD prior to October 1, 2007 is denied. REMANDED A rating greater than 10 percent for the service-connected residual calcific tendonitis status post left patella fracture with arthritis is remanded. A rating greater than 20 percent for the service-connected cervical degenerative arthritis is remanded. A total disability rating based on individual unemployability (TDIU) prior to May 31, 2007 is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, from October 1, 2007, his service-connected PTSD resulted in occupational and social impairment with deficiencies in most areas. 2. Prior to October 1, 2007, the Veteran's service-connected PTSD did not result in occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for the service-connected PTSD from October 1, 2007 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a rating greater than 50 percent for the service-connected PTSD prior to October 1, 2007 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a May 2018 decision, the Board denied the Veteran's claims for a rating greater than 10 percent for the service-connected residuals of left patella fracture and an effective date prior to September 1, 2010 for the grant of a 100 percent rating for the service-connected PTSD. He appealed that Board decision to the United States Court of Appeals for Veterans Claims. Pursuant to a joint motion for remand, in a September 2019 Order, the Court remanded that Board decision for readjudication in accordance with the joint motion. In March 2020, the Board remanded the claims for further development. The Board requested an examination to determine the current severity of the Veteran's left knee disability. With respect to the PTSD claim, the Board questioned the adequacy of the withdrawal of appeal of the claim for an increased rating for PTSD filed in July 2003. The Board noted the September 2008 statement from an officer of AMVETS withdrawing the claim for an increased rating for PTSD. The Board observed, however, that there was no Power of Attorney (POA) executed in favor of AMVETS. The Board thus requested that the agency of original jurisdiction (AOJ) associate with the claims file the now-revoked POA appointing AMVETS as the Veteran's representative. The Board stated that if a validly executed POA appointing AMVETS as representative prior to the September 2008 withdrawal of appeal of the claim for increase for PTSD cannot be found, then the AOJ was to proceed with adjudication of the PTSD claim as though the earlier claim for an increased rating had not been withdrawn. In a September 2020 rating decision, the AOJ stated that a VA Form 21-22 or other validly executed POA appointing AMVETS as representative could not be found. The AOJ then adjudicated the claim for an increased rating for PTSD, awarding a 100 percent rating for PTSD effective November 26, 2007. Thus, the Board has characterized the issue as noted above. Also in the September 2020 rating decision, the AOJ granted a TDIU effective May 31, 2007. As aptly noted by the AOJ, the claim for a TDIU is a part of the increased rating claims on appeal. As the claims for increased ratings, as well a claim for a TDIU, were received on September 22, 2004, the claim for a TDIU remains on appeal. Thus, the Board has characterized the issue as noted above. As the September 2008 withdrawal of appeal has been found invalid, all claims on appeal at that time remain before the Board. That includes the appeal of the claim for an increased rating for a cervical spine disability. While the Veteran did not file a notice of disagreement to subsequent rating decisions on the issue, the issue has remained pending. Thus, the Board has taken jurisdiction over this issue. In March 2021, the Veteran's representative requested an extension of time until June 4, 2021 to submit additional evidence and argument. In May 2021, the representative submitted a brief in support of the appeal. Increased RatingPTSD Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In the March 2020 remand, the Board indicated that the Veteran's current claim for an increased rating for PTSD stems from a claim filed in July 2003. Upon further review, the Board observes that that claim was denied in a February 2004 rating decision, and the Veteran was notified of the decision and his appellate rights, but he did not initiate an appeal. The Veteran filed a new claim for an increased rating for PTSD on September 22, 2004. While VA treatment records were added to the claims file in November 2004, within a year of the February 2004 rating decision, they were obtained in conjunction with the new increased rating claim. The AOJ adjudicated the new claim in an April 2005 rating decision, to which the Veteran filed a notice of disagreement, and issued a statement of the case in June 2006. The Veteran perfected the appeal by filing a VA Form 9 in July 2006. In both the rating decision and statement of the case, the AOJ noted that the claim on appeal was filed on September 22, 2004. Thus, the current claim on appeal stems from the September 22, 2004 claim for an increased rating. Prior to November 26, 2007, the Veteran's PTSD has been assigned a 50 percent rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. The psychiatric symptoms listed in this rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Specifically, the criteria of Diagnostic Code 9411 provide for a 70 percent rating where the evidence shows 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); and inability to establish and maintain effective relationships. The criteria also provide for a 100 percent rating where the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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); and disorientation to time or place; memory loss for names of close relatives, own occupation or own name. At a February 2005 VA examination, the Veteran reported that he was living alone and not working due to physical disability. He reported sleep disturbance and lack of interest in activities but still able to perform all household chores. Examination revealed that he was alert and fully oriented, well-groomed, pleasant, polite, and cooperative with no inappropriate behavior. Thought process and content were normal with no suicidal ideation. Insight and judgment were normal. Memory was fair. The examiner estimated the GAF score as 60 to 65. The examiner stated that his PTSD was mostly under control with some breakthrough symptoms and he seemed to be coping relatively well with medications and therapy. The examiner concluded that his PTSD does not result in significant impairment. The examiner noted that the Veteran had no impairment in the ability to understand, carry out, and remember simple instructions; complete detailed and complex instructions; and relate and interact with supervisors, coworkers, and the public. The examiner noted that the Veteran had mild impairment in the ability to maintain concentration and attention, persistence, and pace; associate with day-to-day work activity, including attendance and safety; adapt to the stresses common to a normal work environment, including attendance and safety; and maintain regular attendance in the workplace and perform work activities on a consistent basis. At an October 2006 VA examination, the Veteran reported that he was not working due to an Achille's tendon injury but was in the process of buying a café, attending small business school, and working with the small business association. With respect to his PTSD symptoms, he stated that they occur mainly at night when he has poor sleep. He stated that he is irritable and angry at times. He endorsed recurrent recollections of the trauma but noted that they only happen at night. He denied any other major symptoms. He reported that he was divorced and living alone and performing all household duties. Examination revealed that he was alert and fully oriented, well-groomed, pleasant, polite, and cooperative with no inappropriate behavior. Thought process and content were normal with no suicidal ideation. Insight and judgment were normal. Memory was fair. The examiner estimated the GAF score as 65 to 70. The examiner stated that the Veteran has occasional interference in performing activities of daily living but is able to establish and maintain effective work/school and social relationships, and maintain family role functioning, and has no difficulty with recreation or leisure pursuits or with physical health. The examiner stated that the Veteran has no difficulty understanding simple or complex instructions. At an October 2007 VA examination, the Veteran reported sleep impairment with social isolation and guardedness. Examination revealed that the Veteran was fully oriented with appropriate hygiene and behavior. There was no delusional history and no delusion observed. There was no hallucination history and no hallucination observed. Obsessional rituals were absent. Thought processes were appropriate. Judgment was not impaired. Abstract thinking was normal. Memory was normal. Suicidal and homicidal ideation were absent. He had cognitive dulling and social isolation and withdrawal. The examiner estimated the GAF score as 55. The examiner stated that the Veteran does not have difficulty performing activities of daily living and has no difficulty understanding commands. The examiner noted that the Veteran is unable to establish and maintain effective work/school and social relationships because he is isolative and guarded but is able to maintain effective family role functioning and has no difficulty with recreation or leisurely pursuits. The examiner added that the Veteran poses no threat of persistent danger or injury to himself or others. VA treatment records essentially mirror the examination reports, noting complaints of depression and sleep impairment but no suicidal ideation. Of note, a May 2005 record shows that the Veteran was separated from his wife but had regular contact with his children. A May 2006 record shows that he returned from a week-long trip to the east coast where he saw everyone in his family, including his ex-wife, and attended his son's college graduation. A December 2006 record shows that he does occasional "off-the-books" security work and plans to return to work after the new year. A January 2007 record shows that he has become more symptomatic since quitting his job in 2004, when the pain from his Achille's tendon injury was too severe to return to his old job, and the stress of unemployment and financial distress has contributed to his current symptomatology. He noted temper control problems but denied thoughts of harming others or himself and was in an anger management group. A May 2007 record shows a GAF score of 65. A June 2007 record shows a GAF score of 60 and that stress management group was helping. Initially, the Board finds that a higher 70 percent rating is warranted from the October 1, 2007 date of the above VA examination. At that time, the Veteran had social isolation and withdrawal, and the examiner stated that he was unable to establish and maintain effective work/school and social relationships because he was isolative and guarded. The above indicates deficiencies in work and school. While the examiner stated that the Veteran was able to maintain effective family role functioning, the Board observes that his inability to maintain effective social relationships may also hinder his family relations. The examiner also assigned a GAF score of 55, which is a decrease from prior examinations and the lowest GAF score during the entire rating period. GAF scores from 51 to 60 indicate moderate symptoms or moderate difficulty in social or occupational functioning. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Lastly, the November 26, 2007 psychiatric report from the Social Security Administration that gave rise to the current 70 percent rating also notes social withdrawal or isolation as well as the Veteran's inability to complete a normal workweek or handle even low work stress. The above suggests that the findings of the earlier October 2007 VA examination were the first indication of an increase in the Veteran's symptoms. The Board will resolve reasonable doubt and find that from October 1, 2007, the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, and family relations. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, a higher 70 percent rating is warranted from that time. An even higher evaluation of 100 percent, however, is not warranted. The evidence fails to show that the Veteran had total occupational and social impairment. Even if the Board were to find that the Veteran had total occupational impairment, the record fails to show that he had total social impairment, which is also required for a 100 percent rating. Despite his social isolation and withdrawal, the examiner indicated that he was able to maintain family relations. Thus, while his social isolation and withdrawal resulted in significant social impairment, they did not result in total social impairment. He also did not report any symptoms of a 100 percent rating. Moreover, his GAF score indicating moderate impairment also does not indicate total occupational and social impairment. Although a 70 percent rating is warranted from October 1, 2007, examinations have not shown that the Veteran had deficiencies in most areas prior to that time. The February 2005 examiner's assessment that he had mild impairment in the ability to perform work activities on a consistent basis supports the rating criteria for at most a 50 percent rating, which requires occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130, Diagnostic Code 9411. The October 2006 examiner noted that he was buying a café, attending small business school, and working with the small business association. The examiner also noted that he was maintaining family role functioning. The above shows that he did not have deficiencies in work, school, or family relations. While the Veteran may have had a deficiency in mood, he was able to maintain good family relationships and retained good judgment and thinking. Thus, the Board cannot find that his PTSD resulted in occupational and social impairment with deficiencies in most areas prior to October 1, 2007. In terms of symptoms, the Veteran did not have 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; spatial disorientation; or inability to establish and maintain effective relationships. The Board notes that the February 2005 examiner noted that the Veteran had mild impairment in the ability to adapt to the stresses common to a work environment, which reflects difficulty in adapting to stressful circumstances. However, as the examiner described that impairment as mild, the Board cannot find that it resulted in a deficiency in work. The Board also notes that the October 2006 examiner stated that the Veteran has occasional interference in performing activities of daily living, which suggests neglect of personal appearance and hygiene. However, all examinations have indicated that he was well-groomed. Moreover, the totality of the evidence does not show that his PTSD more nearly approximated occupational and social impairment with deficiencies in most areas due to that or any other symptom to warrant a higher 70 percent rating prior to October 1, 2007. The Board notes the Veteran's GAF scores ranging from 60 to 70. GAF scores from 61 to 70 indicate some mild symptoms or some difficulty in social or occupational functioning, but generally functioning pretty well and having some meaningful interpersonal relationships; and GAF scores from 51 to 60 indicate moderate symptoms or moderate difficulty in social or occupational functioning. DSM-IV. Thus, the Veteran's GAF scores indicated mild to borderline moderate symptoms, or mild to borderline moderate occupational and social impairment. The Board observes that the level of impairment reflected in his GAF scores is contemplated in the currently assigned 50 percent rating for PTSD resulting in occupational and social impairment with reduced reliability and productivity. VA treatment records also do not show a higher level of impairment due to the PTSD or symptoms of a severity or frequency to support a higher rating, including the GAF scores of 60 and 65. Thus, prior to October 1, 2007, the Veteran's service-connected PTSD did not result in occupational and social impairment with deficiencies in most areas. Thus, a rating greater than 50 percent prior to that time is not warranted. In conclusion, the Board has resolved the benefit of the doubt in granting a 70 percent rating from October 1, 2007 for the service-connected PTSD. However, as the preponderance of the evidence is against an even higher rating or a rating greater than 50 percent prior to that time, those aspects of the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND A rating greater than 10 percent for the service-connected residual calcific tendonitis status post left patella fracture with arthritis If a validly executed POA appointing AMVETS as representative could not be found, then the AOJ was to proceed as if the earlier claim for an increased rating was not withdrawn. While that remand request was specific to the PTSD claim, the September 2008 withdrawal of appeal listed not only the PTSD claim but also the left knee claim. As the claim for an increased rating for the left knee disability was also received on September 22, 2004, the rating period on appeal extends back to that date. However, in readjudicating the claim for an increased rating for the left knee disability in the October 2020 supplemental statement of the case, the AOJ did not consider the entire rating period, only noting evidence dated since the May 2018 Board decision. The September 2014 statement of the case issued in conjunction with the current appeal only considered the evidence since the then-considered date of claim of January 13, 2009. Moreover, a VA examination report was added to the claims file in April 2015, in between the issuance of the statement of the case and the Board decision. Thus, to ensure due process, the AOJ should readjudicate the claim considering all the evidence added to the record since the issuance of original statement of the case in June 2006 for the appeal of the claim for an increased rating that was never withdrawn. A rating greater than 20 percent for the service-connected cervical degenerative arthritis The Veteran also perfected an appeal of the claim for an increased rating for his cervical degenerative arthritis, also received on September 22, 2004. However, the AOJ deemed the issue withdrawn based on the September 2008 withdrawal of appeal which also listed the issue. That withdrawal has been found invalid. While the Veteran did not file a notice of disagreement to subsequent rating decisions on the issue, the issue has remained pending. Thus, remand is warranted for the AOJ to readjudicate the issue in a supplemental statement of the case. The AOJ should consider all the evidence added to the claims file since the last readjudication of the claim in a June 2008 supplemental statement of the case. TDIU prior to May 31, 2007 As discussed earlier, a claim for a TDIU prior to May 31, 2007 remains before the Board as part of the increased rating claims on appeal. However, in readjudicating the increased rating claims in the October 2020 supplemental statement of the case, the AOJ did not also readjudicate the claim for a TDIU prior to May 31, 2007. The AOJ must do so in the first instance prior to the Board's review of the claim. Moreover, as the remand of the above claims for increased ratings could affect the claim for a TDIU prior to May 31, 2007, the claims are inextricably intertwined, and a decision on the TDIU claim at this time would be premature. Accordingly, these matters are REMANDED for the following action: 1. Readjudicate the claim for a rating greater than 10 percent for the service-connected residual calcific tendonitis status post left patella fracture with arthritis in light of all the evidence added to the claims file since the issuance of the June 2008 supplemental statement of the case. 2. Readjudicate the claim for a rating greater than 20 percent for the service-connected cervical degenerative arthritis in light of all the evidence added to the claims file since the issuance of the June 2008 supplemental statement of the case. 3. Readjudicate the claim for a TDIU prior to May 31, 2007. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.