Citation Nr: 21042445 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 14-35 482A DATE: July 13, 2021 ORDER Prior to September 2, 2011, an initial rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. From September 2, 2011, to September 11, 2012, a rating in excess of 70 percent is denied. REMANDED Entitlement to a rating in excess of 10 percent for a lumbar spine disability is remanded. FINDINGS OF FACT 1. Prior to September 2, 2011, the Veteran's PTSD was manifested by social and occupational impairment with deficiencies in work, family relations, unprovoked irritability with periods of violence, and difficulty adapting to stressful circumstances. 2. From September 2, 2011, to September 11, 2012, the Veteran's PTSD did not result in total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to September 2, 2011, the criteria for an initial rating of 70 percent for PTSD were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. From September 2, 2011, to September 11, 2012, the criteria for a disability rating in excess of 70 percent for PTSD were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from June 1990 to June 1995, May 2002 to February 2003, and January 2005 to June 2006, to include service in Southwest Asia. The Veteran was awarded the Bronze Star. This case comes before the Board of Veterans' Appeals (Board) on an appeal from June 2010 and December 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office. In October 2014 and July 2017, the Veteran requested a Board hearing. In May 2019, the Veteran received notification that a hearing was scheduled for August 19, 2019, but he did not appear at the hearing and did not explain his absence. As such, the Veteran's hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704 The Veteran initially filed service connection claim for his PTSD and an increased rating claim for his lumbar spine disability on April 26, 2010. A June 2011 rating decision granted service connection for PTSD and assigned an initial 50 percent rating outside a period of convalesce from April 12, 2011, to June 1, 2011. He was also granted an increased rating of 10 percent for his lumbar spine disability effective April 26, 2010. An August 2010 rating decision continued to assigned ratings for his PTSD and lumbar spine disability. The Veteran filed increased rating claims for his PTSD in September 2011. A December 2011 rating decision granted an increased rating of 70 percent for his PTSD effective September 2, 2011, and continued the assigned 10 percent for his lumbar spine disability. The Veteran filed a Notice of Disagreement in April 2012, and the RO issued a rating decision on September 26, 2012 granting 100 percent for PTSD. The Board finds that the June 2010 and August 2010 rating decisions did not become final. The Veteran did not file notices of disagreement with the June 2010 and August 2010 decisions. However, following each of these decisions, new evidence was added to the record including VA and private medical records and examination reports. No subsequent rating decision made a determination with regard to whether this evidence was new and material. As such, these decisions did not become final. This evidence was new and pertained to the severity of the Veteran's service-connected disabilities. As a result, the current appeals period therefore begins on April 26, 2010. Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Prior to September 2, 2011 The Veteran seeks a rating in excess of 50 percent for his PTSD prior to September 2, 2011. Under the General Formula for Mental Disorders, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Diagnostic Code for PTSD is 9411, and it provides for evaluation of this disability under General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130. With respect to mental disorders, a 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. In an April 2010 psychiatry consult, the Veteran complained of nightmares and irritability. He also discussed bruising his wife at night over the prior six months while he was in the midst of violent nightmares. His wife said she was fearful that if he slept on the couch, he would get up and hurt the children. He talked about being moody, irritable, having outbursts with his children, wife, and at work. He said he got particularly upset if he believes other people are not respecting or listening to him. He reported not feeling depressed, but occasionally anxious. He also described in the previous month, experiencing road rage, and chasing someone who cut off his wife in a car in front of him, and about handcuffing his 10-year-old daughter because she was "annoying" him. He said that for the most part he felt his temper outbursts were provoked by others and their disrespectful behavior. The Veteran also said he worked full-time, was attending online college, went fishing with his friends, and did many of the household chores. Later in April 2010, a licensed clinical social worker assigned to the Veteran submitted a letter describing the Veteran's PTSD. The social worker reported that the Veteran's symptoms resulted in difficulties with his wife, his children, and his work. The social worker reported that the Veteran had nightmares one to two times a week and had relationship problems with his wife associated with anger outbursts. The social worker reported that he had poor sleeping patterns, yelled, and tossed in his sleep, and that he had hit and choked his wife accidently. The social worker reported that the Veteran had nightmares of bodies and the death of his Iraqi interpreter, and how they reflected a theme of helplessness. The Veteran discussed problems at work when dealing with Muslim inmates, reported avoiding Muslim activities, and reported his concentration and focus at work were diminished. In a May 2010 psychiatry note, the examiner reported that the Veteran claimed he was more mellow and relaxed at home but was more aggressive at work. The examiner reported that the Veteran talked about how he felt his supervisors and coworkers were playing games at work and trying to micromanage him. The examiner reported that the Veteran also disclosed having an outburst with his lieutenant and resolved this by leaving work early and telling his lieutenant he could finish the argument in the parking lot. The Veteran reported that he denied planning to physically assault the lieutenant but admitted that he felt out of control. He also reported that he had an incident at a bar/restaurant, where he had been drinking and got into a fight. The Veteran was snappy and verbally abusive, and he talked about experiencing significant strain in his family relationships due to frequent anger problems, and that he struggled with recurring depression. In a June 2010 psychiatry consult, the Veteran reported he did not feel depressed, but was experiencing anxiety, restlessness, his concentration was variable, and he had poor short-term memory, often forgetting names and faces. He denied having hallucinations, delusions, recent panic attacks, or recent homicidal ideations. However, he did tell the psychiatrist he had suicidal thoughts about driving off a bridge when he was angry. He said he had occasional intrusive memories and flashbacks, but that he was able to go on a fishing trip with the guys from work and that he participates in the Wounded Warrior Project. The Veteran presented as alert and oriented, casually dressed, good hygiene, cooperative with good eye contact, a mildly angry affect, and clear and coherent speech. The examiner determined the Veteran was restless, had nightmares, mood instability, irritability, aggressive behaviors, above average impulsivity, and he felt edgy at times. Later in June 2010 during a family counseling visit, the Veteran and his wife discussed the Veteran having a panic attack while he was drinking recently. They reported that the neighbors were setting off firecrackers, and the Veteran's family was scared he would take his rifle and go after the neighbors. The wife described getting choked and hit in the past while the Veteran was having nightmares, and that he was escalating to where he yells and scares the family. In April 2011 primary care note, it detailed the Veteran's history of alcohol usage and his downplaying it. He recounted the incident with the neighbors and the fireworks saying he grabbed his rifle and said he was going to shoot the neighbors, but his family was overreacting. He presented with outbursts of anger, rage, road rage, and nightmares, admitted to strangling his wife three times in his sleep, but denied injuring her. He discussed his previous suicide attempt but denied presently having suicidal and/or homicidal ideations. He also denied having any hallucinations. He was still employed full-time as a corrections officer. Later the same month in a psychology note, the Veteran endorsed insomnia, depression, occasional emotional numbing, and physical pain. He was emphatic he would never attempt suicide again, and that his family and mother-in-law were a good support system At a May 2011 psychiatry consult, the Veteran reported anger had been a big issue for him and that when he got angry, he broke things and occasionally got into physical confrontations. He told the psychiatrist that he had nightmares two to three times a week, had no stress, was in a good mood, but that he felt his problems affected his relationship with his kids and his wife. He reported that his doctor thought he had a drinking problem, but he believed it was untrue. He said he was easily startled, tense all the time, uncomfortable with fireworks, and he tried to avoid crowds. He reported that he made friends easily, had some very close friends, and learned how to read people. During a July 2011 behavioral health psychiatric evaluation, the Veteran discussed his move to Florida from Pennsylvania. He said he had a few anger episodes since moving, but that he was trying to keep things under control. He discussed still having intense nightmares one to two times a week, waking drenched in sweat. He endorsed road rage and said his depression was minimal. He talked about being a stay at home dad and described a positive future focus with the family. He reported enjoying fishing, hunting, and working out. The doctor noted the Veteran continued to experience negative symptoms, inclusive of easy irritability, sleep disruptions, impulsivity with angry verbal outbursts, intense nightmares, and intrusive thoughts. He endorsed positive focus regarding he and his family's future and reported activities of enjoyment. Later in July 2011 at a PTSD consult, the Veteran discussed having significant stress after moving to Florida, particularly due to financial concerns, and that the stress affected him and his relationship with his family. He reported increased irritability, recurrent nightmares, intrusive thoughts, anxiety, hypervigilance, and significant avoidance of potential anxiety triggers. He told the doctor he had some difficulty trusting others, and that it took a long time for people to earn his trust. He said he was in contact with his father but did not talk to his mother more than he had to, and that he remained estranged from his two sisters. He said he had a few friends and that he tried to go out with them about once a week. The psychiatrist noted the Veteran's symptoms had caused clinically significant distress/impairment in various areas of psychosocial functioning. Upon review, the Board finds that a disability rating of 70 percent prior to September 2, 2011, is warranted as the record reflects the Veteran meets the 70 percent disability rating. The Veteran had occupational and social impairments demonstrated by altercations with family, his lieutenant, the neighbors, and his road rage. He also suffered unprovoked irritability with periods of violence demonstrated by his want to fight his lieutenant, handcuffing his daughter, reaching for his rifle to shoot his neighbors while they set off fireworks, and his fighting at a restaurant. He also endorsed wanting to drive his truck off a bridge in anger, demonstrating suicidal thoughts. While the Board considered whether the Veteran would be entitled to the next higher rating of 100 percent, the Board finds this inapplicable. While the Veteran met the 70 percent criteria prior to September 2, 2011, the Veteran's disability did not rise to total occupational and social impairment. Throughout the appeal, the Veteran consistently presented as appropriately groomed, cooperative, clear and directed speech, and discussed enjoying fishing and hunting, being a part of the Wounded Warrior Project, working at his job and trying to promote, taking online classes, and maintaining a marriage over 10 years despite relationship problems caused by his illness. He did not show gross impairment in thought process or communication, persistent delusions or hallucinations, or an inability to perform activities of daily living. Accordingly, prior to September 2, 2011, the Veteran did not meet total occupational and social impairment. Therefore, the Board finds that an initial rating of 70 percent prior to September 2, 2011, is warranted. 38 C.F.R. § 4.130. From September 2, 2011, to September 11, 2012 The Veteran seeks a rating in excess of 70 percent for his PTSD from September 2, 2011 to September 11, 2012, when he was granted a 100 percent rating for his PTSD. The Veteran had a VA examination in December 2011. The Veteran's PTSD diagnosis was confirmed, and he was also diagnosed with alcohol abuse. The examiner stated that the Veteran suffered from alcohol abuse in an attempt to cope with PTSD but started alcohol usage prior to any reported trauma. The doctor determined the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. The Veteran experienced depression, fear, anxiety, sleep problems, hypervigilance, an exaggerated startle response, concentration problems, irritability with physical aggression, and memory problems. The symptoms of his PTSD included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideations, and impaired impulse control. He reported being unemployed and staying at home taking care of the children, and that he had several friends that he liked to be outdoors with fishing. In a February 2012 psychiatry note, the Veteran talked about how he continued to feel uncomfortable in crowded places, and even had to leave his daughter's confirmation as soon as the service was over because he felt the walls were coming in on him. He reported still drinking, and that he took himself off medications once and that his wife noticed a worsening in his mood. The Veteran presented as calm, pleasant, cooperative, maintained good eye contact, normal speech, his mood was "all right," his thought process was linear and goal oriented, and he did not have any hallucinations, delusions, or suicidal or homicidal ideations. In May 2012, the Veteran, during a psychiatry consult, stated that he had been doing okay. He had been keeping himself busy with family life and had considered doing activities that he previously enjoyed such as fishing. However, later the same month, in a PTSD group therapy session, the Veteran disclosed he was very upset following a family crisis, and that he was taking steps in order to refrain from engaging in unsafe behaviors. The Board finds that a disability rating in excess of 70 percent prior to September 11, 2012, is not warranted. The records do not reflect the Veteran met the 100 percent disability rating. While the Veteran had social impairments demonstrated by angry outbursts, road rage, difficulty in his marriage, and having impaired judgment, he has still maintained a long-term marriage, friendships, occasionally fishing, and attending his daughter's confirmation, however limited the time he was able to spend there. During the course of his treatment, the Veteran always presented as cooperative, never discussed having hallucinations or delusions, was oriented to time and place, and presented with fair grooming and hygiene. Thus, the Veteran did not meet total occupational and social impairment prior to September 11, 2012. The preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating, prior to September 11, 2012. Therefore, the criteria for a 100 percent rating, prior to September 11, 2012, are not met and the appeal must be denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND The Veteran seeks a rating in excess of 10 percent for his lumbar spine disability. Unfortunately, a remand is necessary. The Veteran was afforded VA examinations in December 2011 and in September 2012. However, these examinations did not include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing in accordance with Correia v. McDonald, 28 Vet. App. 158 (2016). In addition, the examination did not provide an opinion regarding, what if any, additional loss the Veteran experienced during flare-ups or after repeated use over time, in accordance with Sharp v. Shulkin, 29 Vet. App. 26, 32-34 (2017). Pursuant to these requirements, the Board finds that a remand is necessary for a VA examination compliant with Correia and Sharp. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records not already associated with the claims file regarding the Veteran's lumbar spine disability. 2. Then, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his lumbar spine disability. The examiner should provide a full description of the lumbar spine disability and report all signs and symptoms necessary for evaluating the Veteran's lumbar spine disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Doerfler, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.