Citation Nr: 21042425 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-02 461 DATE: July 13, 2021 ORDER Entitlement to an initial evaluation in excess of 50 percent disabling for service-connected posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an evaluation in excess of 10 percent disabling for service-connected status post (s/p) right tibia fracture (claimed as right leg condition) is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for asthma is remanded. Entitlement to a total disability evaluation based upon individual unemployability is remanded. FINDING OF FACT Throughout the appeal period, the severity, frequency, and duration of the Veteran's psychiatric symptoms more nearly approximated total occupational and social impairment. CONCLUSION OF LAW The criteria for establishing entitlement to an evaluation of 100 percent disabling for service-connected posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from August 1976 to January 1980. In her January 2017 substantive appeal, the Veteran requested a video conference hearing. In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. As a preliminary matter, the Board notes that the issue of entitlement to a total disability rating based upon individual unemployability (TDIU) was raised by the record during the Veteran's January 2021 Board hearing. It is now deemed a part of the appeal stream. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to a TDIU is thus remanded to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2020). As to the remaining claims of entitlement to an evaluation in excess of 10 percent disabling for service-connected status post (s/p) right tibia fracture (claimed as right leg condition) and entitlement to service connection for a left knee condition and for asthma, a remand is necessary in order to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2020). The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.10 (2020). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial evaluation in excess of 50 percent disabling for service-connected posttraumatic stress disorder (PTSD) The Veteran contends that the current severity of her service-connected PTSD warrants an initial evaluation in excess of 50 percent disabling. For the reasons stated in more detail below, the Board finds that the evidence supports a higher evaluation of 100 percent disabling. The Veteran's mental disorder is currently evaluated as 50 percent disabling pursuant to Diagnostic Code 9411. See 38 C.F.R. § 4.130. (2020). Under the General Formula for Mental Disorders, a 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, due to symptoms such 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. Id. A 100 percent rating 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130 (2018). The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms listed after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). VA is not required to find the presence of all, most, or even some of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating and permits consideration of other symptoms particular to each veteran and disorder along with the effect of those symptoms on the Veteran's social and work situation. Id. Indeed, § 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In evaluating a mental disorder, consideration must be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). Review of the record indicates that the Veteran was granted service connection for PTSD and assigned an evaluation of 50 percent disabling pursuant to a November 2016 Rating decision. An effective date of February 8, 2011 was indicated. Review of VA treatment records list diagnoses of PTSD, major depressive disorder, and dysthymic disorder. Noted symptoms included severe anxiety, feelings of sadness, helplessness/hopelessness, low self-esteem, persistent fatigue, decreased motivation, anger/frustration, increased irritability, and impaired sleep (despite use of prescription medications). Other treatment records document problems with trust, self-esteem, social interactions, and difficulty leaving the house to perform simple tasks of daily living. Current diagnoses include PTSD, an adjustment reaction disorder with anxiety, and major recurrent depression. On examination in October 2016, the examiner documented current diagnoses of PTSD and persistent depressive disorder. Both disorders were deemed causally related to the same traumatic military stressors. Following the clinical evaluation, the examiner indicated that the Veteran suffers from occupational and social impairment with reduced reliability and productivity; you experience symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work-like setting. Despite the noted symptoms, she remained capable of managing her own financial affairs. In an appellate brief, dated March 2017, the Veteran's counsel asserted that VA examiner failed to properly consider the Veteran's lengthy history of treatment for her psychiatric symptoms or adequately evaluate the severity, frequency and duration of symptoms and their impact on her quality of life and other important areas of functioning. Specifically, the Veteran endured two separate instances of military sexual trauma in 1977. Since separation, she struggled through years of chronic symptomology to include severe depression, in-patient hospitalizations for suicidal ideations, fear/discomfort when attempting to leave the house, obsessive rituals, hypervigilance, fear of being attacked/re-victimized, feelings of anxiousness when alone, anxiety while driving, and struggles with establishing or maintaining relationships. Given that the progressive nature of the Veteran's PTSD, its long-term impact and severity, a 100 percent evaluation is most appropriate. During a Board hearing in January 2021, the Veteran testified regarding her struggles with worsening symptoms related to her service-connected PTSD. She contends that her symptoms dominate her life. In May and June 1977, the Veteran suffered military sexual trauma. She states that she was stalked and later, attacked in her room by a senior officer. The perpetrator admitted committing four attacks, to include involving two other women. The U.S. Army Crime Records Center in Quantico provided a copy of the Criminal Investigation Command (CID) report from the stated period. Following the noted trauma, the Veteran experienced performance-related issues. Since separation, the Veteran endorsed symptoms include recurrent nightmares, an exaggerated startle response, chronic sleep disturbance, trust and anger issues, hypervigilance, social avoidance, struggles with depression, mood swings, and trouble being alone particularly at night. As to the later, no symptom improvement was noted despite the presence of a service animal. To treat her condition, the Veteran endorsed participation in individual therapy/counselling, use of anti-depressant medications, and in-patient hospitalizations in 2010 and 2011 due to suicidal ideations. Due to her symptom severity, the Veteran has been unable to maintain employment for any significant period. Post-service, she acknowledged an attempt to work in at least 15 different jobs. None lasted longer than 2 years. Within the professional setting, she endorsed difficulty working near or in the presence of others due to fear for her personal safety. The Veteran also reported difficulty maintaining personal relationships, to include with intimate partners. Counsel requested a 90-day extension to obtain a private psychiatric opinion. In March 2021, the Veteran underwent a private psychiatric examination. Current diagnoses included PTSD, a severe persistent depressive disorder, and a generalized anxiety disorder. During the clinical interview, she reported the experience of sexual assault and harassment on multiple occasions in-service. Although the incidents were reported, the Veteran was never offered counseling or victim advocate. Post-service, the Veteran experienced difficulty maintaining employment, due to her psychiatric symptoms including mistrust of others, suicidal ideations, emotional distress, and general difficulty coping with life. Behavior health services dating back to 2010, document chronic symptoms to include suicidal ideations. At present, the Veteran continues to endure recurrent nightmares, insomnia/sleep disturbance, weight gain, social avoidance, mistrust of others, difficulty maintaining interpersonal relationships, feelings of helplessness and vulnerability, decreased concentration, hypervigilance, an exaggerated startle response, panic attacks, fear discomfort with being alone, sadness/depressed mood/anxiety, decreased motivation, irritability, and restlessness. Prescribed psychiatric medications have included Lexapro, Trazadone, Prazosin, Zolpidem, Venlafaxine, Bupropion, and Aripiprazole. Meaningful symptom improvement has not been shown. Considering the above, the physician concluded that due to the service-related harassment/trauma, inappropriate touching, and emotional abuse, the Veteran continues to suffer from emotional, psychological, and physical disorders which severely impair her occupational and social functioning. In a review post-traumatic stress disorder disability benefits questionnaire, also dated March 2021, the Veteran's PTSD symptoms were listed as depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, flattened affect, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including a worklike setting, an inability to establish and maintain effective relationships, suicidal ideations, grossly inappropriate behavior, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Her symptoms were associated with total occupational and social impairment. On review of the evidence, the Board finds that an evaluation of 100 percent disabling is warranted throughout the appeal period. In reaching the stated finding, the Board has fully considered all medical evidence and the lay assertions of record. It also acknowledges the Veteran's competence to report on observable symptoms and notes that such statements are generally deemed credible to the extent that they articulate the Veteran's belief that she is entitled to a higher rating. To establish entitlement to an evaluation of 100 percent disabling, the medical evidence must show that the Veteran's psychiatric condition was productive of 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. In this case, the medical evidence includes a documented history of the Veteran's worsening psychiatric symptoms, to include a depressed mood, impaired social interactions/relationships, social avoidance/isolation, anger, aggression, irritability, and suicidal ideations. Moreover, in-patient treatment programs were required due to severe symptomology in 2010 and 2011. VA and private treatment records suggest gross impairment in multiple domains of functioning dating back to active service. Of note, the Veteran acknowledged an onset of performance related issues following the service-related trauma. Since separation, she has been unable to hold any job for longer than 2 years. In recent a private physician's opinion, dated March 2021, the physician concluded that due to the service-related harassment/trauma, inappropriate touching, and emotional abuse, the Veteran continues to suffer from emotional, psychological, and physical disorders which severely impair her occupational and social functioning. Regular use of oral prescription medications, participation individual therapy, nor use of a service animal, have resulted in meaningful improvement in her symptomology. Therefore, resolving all doubt in the Veteran's favor, the Board finds that the evidence supports the assignment of an evaluation of 100 percent disabling throughout the appeal period. To that extent, the Veteran's claim is granted. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent disabling for service-connected status post (s/p) right tibia fracture (claimed as right leg condition) is remanded. Although the further delay entailed by remand is regrettable, current adjudication of the Veteran's claims would be premature. Undertaking additional development prior to a Board decision is the only way to ensure compliance with the duty to assist, as required. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). On review of the record, the Board observes that the Veteran was last afforded a VA examination in October 2016. Current diagnoses included s/p right tibia fracture and s/p total knee replacement of the left knee in 2004. Residual symptoms included intermediate degrees of residual weakness, pain, or limitation of motion. During a Board hearing in January 2021, the Veteran testified that she suffered a broken leg while serving with the United States National Guard. As a result of that injury, she continues to struggle with lower leg and knee symptoms. Post-service, she was evaluated by a retired military physician in 1983. Double knee replacements were recommended. In 2004, the Veteran underwent a left knee replacement. Other symptoms include "low pressure" in the lower extremities with pain and difficulty with prolonged walking or standing. According to the Veteran's Counsel, medical literature suggests a correlation between intensive physical training, running in combat boots and persistent lower extremity conditions post-service. A suggestion of outstanding service treatment records was also indicated. On remand, the AOJ should take all necessary action to seek and obtain the Veteran's outstanding service treatment and service personnel records. Moreover, as the Veteran has suggested a possible correlation between her intensive physical training in service and worsening bilateral leg symptoms, to include her service-connected s/p right tibia fracture, a new VA examination is required. Generally, the Board recognizes that the Veteran is competent to report on his current symptoms and their worsening. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Where there is evidence that the condition has worsened since the last examination, a veteran is entitled to a new VA examination. Snzy'fer v. Gober, 10 Vet. App. 400 (1997). On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). 2. Entitlement to service connection for a left knee condition is remanded. The Veteran contends that she is entitled to service connection for a left knee condition. To date, a complete copy of the Veteran's service treatment and military personnel records have not been associated with the claims file. Post-service treatment records show that in December 2006, a primary care treatment record listed current diagnoses including asthma, a left knee total knee replacement (in 2004), and degenerative joint disease of the right knee. A prior history of arthroscopic surgeries to the right knee was also indicated. During the clinical interview, the Veteran reported significant improvement in her asthma-related symptoms with use of Singulair and a rescue inhaler. Flare-ups occur only occasionally (once every five months). Two years later, in November 2008, an internal medicine consultation indicated that the Veteran was had a history of asthma with remote use of prednisone 4 years earlier. No history of intubation or severe exacerbation was noted. A suggestion of osteoarthritis impacting the bilateral knees was also suggested. Other treatment records show that the Veteran's asthma was well controlled with use of prescription medication, Singular. Minimal use of the previously prescribed rescue inhaler was reported. A physical examination revealed good air exchange in the lungs with no signs of wheezing. During a Board hearing in January 2021, the Veteran reported an experience with asthma dating back to active service. Complaints of symptoms included bouts with wheezing while running that caused her to faint. Current respiratory problems include wheezing in damp weather. Prescribed medications include, Symbicort. The Veteran also endorsed receipt of treatment for bilateral leg pain from a retired military physician in 1983. At that time, she was advised that double knee replacements were recommended. Surgery on the left knee was performed in 2004. The Veteran suggests that a possible link between her participation in intensive physical drills, running in combat boots, her service-related broken leg (right) and post-service bilateral lower extremity problems. According to Counsel, a review of medical literature suggested a correlation between in-service physical training in combat boots and persistent lower extremity conditions post-service. As noted above, a complete copy of the Veteran's service treatment and personnel records remains outstanding. Therefore, a remand is required to allow the VA to request these records. Moreover, as the record is incomplete, current adjudication of the Veteran's service connection claims would be premature. Therefore, the Veteran's claim is remanded pending further development to obtain outstanding records. 3. Entitlement to service connection for asthma is remanded. The Veteran contends that she is entitled to service connection for asthma. The Board incorporates by reference, the arguments noted in Section 2. 4. Entitlement to a total disability evaluation based upon individual unemployability is remanded. As noted above, the Veteran's claim of entitlement to TDIU is now on appeal under Rice. Further, as additional notification and adjudicative actions are warranted as to the above referenced claims, the issue of TDIU is also remanded as inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, these matters are REMANDED for the following actions: 1. Take all appropriate actions to obtain outstanding service treatment and military personnel records. If the records cannot be obtained after reasonable efforts, a formal determination should be issued, which indicates that such records do not exist or that further efforts to obtain such records would be futile. A copy of the stated correspondence must be associated with the claims file. Thereafter, the Veteran must be notified of the attempts made and why further attempts would be futile, and afforded the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain updated VA and private treatment records and associate them with the claims file. 3. Upon review and receipt, re-consider the Veteran's claims for service connection for asthma and a left leg disability. If warranted, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's asthma and left leg disability. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that the Veteran suffers from a respiratory condition or asthma as causally related to active service, to include as due to an in-service injury, event or disease. An opinion is also requested as to whether it is at least as likely as not (50 percent or greater probability), that the Veteran suffers from a left leg disability as causally related to active service, to include as due to an in-service injury, event or disease. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran's claims file. See Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019). Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information, or evidence would allow for a more definitive opinion. 4. Furnish the Veteran with a 38 C.F.R. § 3.159 (b) notice letter as to the TDIU claim. 5. Schedule the Veteran for an appropriate VA examination to determine the current severity of the Veteran's right leg disability. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner is asked to conduct a thorough physical examination, including recording of range of motion measurements in both active and passive motion, and in weightbearing and non-weight bearing positions. The examiner's attention is called to the suggestion of a possible correlation of worsening symptoms related to the Veteran's service-connected right leg disability and his non service-connected left knee condition. Specifically, the examiner is requested to offer an opinion regarding the possibility of aggravation. The examiner should consider all prior medical evidence and conclusions and specifically comment on any apparent conflicts. Also, the examiner is invited to review and consider all lay statements of record, to include as to any progression or worsening of symptoms. The examiner must also fully discuss the occupational and functional impairment suffered by the Veteran as a result of his service-connected right leg condition. A complete rationale must be offered for all opinions offered and if the examiner cannot offer an opinion without resorting to mere speculation, the examiner must specifically identify why this is the case and indicate what, if any, additional evidence would allow for a more conclusive decision. 6. After completing the above referenced development, to include an additional development deemed necessary, the Veteran's claims should be re-adjudicated, to include the inextricably intertwined claims. If any claim 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. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.