Citation Nr: 21011177 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 11-00 326 DATE: March 1, 2021 ORDER A rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with obsessive compulsive disorder (OCD) is granted. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a gastrointestinal disorder including gastroesophageal reflux disease (GERD), and other than an ulcer disorder, including as due to service-connected PTSD, is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s PTSD with OCD manifested through occupational and social impairment, with deficiencies in most areas, such as family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation, obsessional rituals which interfere with routine activities, and difficulty in adapting to stressful circumstances. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no higher, for PTSD with OCD are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, DC 9411 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to March 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from March 2009, October 2009, and April 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran testified, sitting in Waco, Texas, before the undersigned via a videoconference hearing. A transcript of the hearing has been associated with the virtual file and reviewed. An August 2019 Board decision denied a rating in excess of 50 percent for PTSD and denied service connection a back disorder and a gastrointestinal disorder. The Veteran appealed the Board’s decision to the United States Court for Veterans Claims (CAVC). In an October 2020 Joint Motion for Partial Remand (JMPR), CAVC remanded the Board’s decision and found the Board did not ensure substantial compliance with prior remand orders and did not provide an adequate statement in support of its denial of the aforementioned claims. Specifically, the October 2016 remand directives afforded the Veteran a VA examination that should, in part, discuss the Veteran’s post-service reports of symptoms for a back disorder. However, the subsequent December 2016 VA examination did not discuss the Veteran’s post-service reports of symptoms. Additionally, the August 2019 Board decision did not sufficiently consider the applicability of 38 C.F.R. § 3.303(b) with regard to the back disorder claim. Also, in denying the gastrointestinal disorder claim, the Board did not address whether the Veteran’s service-connected PTSD leads to alcohol use that has aggravated his gastrointestinal disorder, to include whether another VA medical opinion is necessary to address this theory. And, in denying the claim for increased rating for PTSD, the Board did not sufficiently consider VA treatment notes referencing suicidal ideation. 10/01/2020, CAVC Decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 1. Entitlement to a rating in excess of 50 percent for PTSD with OCD. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. “A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The United States Court of Appeals for Veterans Claims (Court) has observed that the listed symptoms are examples of the type and degree of the manifestations of a mental disability required for a given disability rating, and that “the presence of all, most, or even some, of the enumerated symptoms” is not required to support a disability rating. Mauerhan, 16 Vet. App. at 442. Accordingly, it is not sufficient for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a veteran. Rather, “VA must engage in a holistic analysis” of the severity, frequency, and duration of the signs and symptoms of the veteran’s mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula, in pertinent part, a 50 percent is warranted if the Veteran experiences 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. 38 C.F.R. § 4.130. A 70 percent is warranted when the Veteran experiences 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 work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130.   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. Considerations in evaluating a mental disorder include 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 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). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A November 2019 rating decision assigned an initial rating of 50 percent for PTSD, effective April 11, 2008, in accordance with the August 2019 Board decision. And, a January 2020 rating decision continued the 50 percent disability rating for PTSD with OCD. As noted above, in order to warrant a higher rating, the Veteran’s disability would have to be manifested by at least occupational and social impairment with deficiencies in most areas. The VA treatment records reveal that, in February 2008, the Veteran was diagnosed with adjustment disorder and PTSD. 04/17/2008, Medical Treatment Record Government Facility. Shortly thereafter, in July 2008, the same clinician, Dr. V.M. Cox, Jr., MD diagnosed the Veteran with PTSD, simple phobia, and obsessive compulsive disorder (OCD). 07/30/2008, Medical Treatment Record Government Facility, page 18. A September 2008 VA examination diagnosed the Veteran with PTSD and alcohol use disorder. The examiner did not explicitly indicate the severity of the occupational and social impairment. Nonetheless, the examiner opined that the Veteran has mild PTSD. Although the examiner specifically noted the aforementioned February 2008 and July 2008 VA treatment records, the examiner only considered the adjustment disorder and PTSD diagnoses from the February 2008 records and did not acknowledge the simple phobia and OCD diagnoses from the July 2008 records. 08/28/2008, VA Examination. A March 2016 VA examination also diagnosed the Veteran with PTSD and alcohol use disorder. The examiner opined that the Veteran has occupational and social impairment with occasional decrease work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran’s symptoms were noted to include anxiety and chronic sleep impairment. 03/23/2016, C&P Exam. In a July 2016 Board hearing, the Veteran contended that the March 2016 VA examination was inadequate. Specifically, the examiner did not consider the full history of his psychiatric treatment. The Veteran also described a history of outbursts and incidents while he was employed as a postal service worker, and that employer accommodated his psychiatric condition. Both the Veteran and his spouse testified about his phobia of snakes, including experiencing hallucinations of snakes. 07/14/2016, Hearing Testimony. An October 2016 Board decision remanded the claim for a rating in excess of 30 percent for PTSD. Specifically, the Board noted that the VA treatment records in June and November 2015 show the Veteran was seen with symptoms of anxiety of fluctuating severity further complicated with diagnoses of OCD and phobia, in addition to PTSD. And, the March 2016 VA examination relied, in part, on the August 2008 VA examination for background and history. Accordingly, the AOJ was directed to schedule the Veteran for another VA examination to determine the severity of his service-connected PTSD. 10/14/2016, Remand BVA or CAVC; 11/16/2015, CAPRI (treatment notes regarding OCD and phobia). A December 2016 VA examination noted diagnoses of PTSD, simple phobia (snakes), and OCD. The examiner opined that the Veteran has occupational and social impairment with reduced reliability and productivity. Further, the examiner indicated that it is not possible to differentiate what portion of the indicated level of occupational and social impairment is attributable to each diagnosis, and that each condition fosters and intensifies the expression of the others. The Veteran’s symptoms were noted to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impaired judgment, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that Veteran had first noted to have simple phobia and OCD in July 2008. The examiner further indicated that the treatment notes from 2008 are similar to the Veteran’s recent interactions with mental health providers, including his difficulty in regulating angry affect and edginess. 12/14/2016, C&P Exam. An August 2019 Board decision granted a rating of 50 percent, but no higher, for PTSD. In an October 2020 JMPR, CAVC remanded the Board’s decision and found the Board, in denying the claim for increased rating for PTSD, did not sufficiently consider VA treatment notes referencing suicidal ideation. 10/01/2020, CAVC Decision. The VA treatment records reveal that, throughout the period on appeal, the Veteran has typically been assessed as low risk for self-harm and has denied suicidal ideation or intentions. However, in a May 2014 treatment note, the Veteran disclosed that he had been frequently thinking about suicide, that he had formed a plan that involved the use of a firearm, and did not think he would act on those thoughts due to the people he would hurt. On the same day, the Veteran reported that he did not have suicidal thoughts to a different clinician. 11/16/2015, CAPRI, pages 73-74. A January 2020 VA examination noted diagnoses of PTSD and OCD. The examiner indicated that the Veteran has occupational and social impairment with occasional decrease in work efficiency. The Veteran’s symptoms were noted to include depressed mood, anxiety, chronic sleep impairment, and obsessional rituals which interfere with routine activities. The examiner also opined that the Veteran should not be considered for current imminent or increased risk of self-harm. The examiner noted that, since his separation from active service, the Veteran has coped with his psychiatric conditions through ritualistic behaviors to control his environment. This has become more problematic over time and the Veteran becomes very agitated when things are not in order. For example, the Veteran often feels his head his missing when he wakes up from sleep and his spouse has to pretend she is replacing his head before he can return to sleep. The Veteran also panics when he cannot find something or when something is not where it is supposed to be, being unable to cope effectively. Before his retirement, the Veteran would often abruptly leave work to come home and would express anger towards his co-workers due to his frustrations and anxiety. 01/07/2020, C&P Exam. After review of the competent and probative evidence, the Board finds that a rating of 70 percent, but no higher, is warranted throughout the period on appeal. The Board acknowledges the January 2020 VA examination found the Veteran to have occupational and social impairment with occasional decrease in work efficiency. The Board places great probative weight on the January 2020 VA examination, insofar as the examiner describes the Veteran’s symptoms that severely impair his social and occupational functioning with deficiencies in most areas. Specifically, the Veteran’s obsessional rituals interfere with his daily routine, as the Veteran is unable to even sleep without particular and specific accommodations from his spouse. Additionally, the Board also places probative weight on the December 2016 VA examination, which noted that the Veteran consistently had difficulty in regulating angry affect as early as 2008, which is corroborated by the Veteran’s lay statements describing a history of outbursts and incidents while he was employed as a postal service worker, and that employer accommodated his psychiatric condition. The Board finds that a higher rating of 100 percent is not warranted as the competent evidence does not reflect total social and occupational impairment. See Total, Merriam-Webster, at https://www.merriam-webster.com/dictionary/total (defining "total" as, among other things, "absolute, utter"). The 2020 VA examination report reflects that he has been married for 51 years. Irritability around other was noted. A 2016 VA examination report notes that the Veteran maintains close contact with his two adult children and five grandchildren. In this regard, the Veteran did endorse suicidal ideation, but denied plan or intent to harm himself and otherwise not in persistent danger of harming himself or others. Such is contemplated and compensated by the current 70 percent rating. Although the Veteran has had persistent difficulty in maintain an effective relationship with his spouse, the Board finds that such social function, though limited, does not reflect total social impairment. Additionally, as another factor, the record is devoid of indications that the Veteran exhibits gross impairment in thought process or communication and any inability to perform activities of daily living, including minimal personal hygiene As such, the Board finds that when viewed against other evidence of record, to include the treatment records and statements, that the Veteran’s overall disability picture is most nearly approximated by the 70 percent evaluation, and not a 100 percent rating, throughout the period on appeal. 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to service connection for a back disorder is remanded. 3. Entitlement to service connection for a gastrointestinal disorder including gastroesophageal reflux disease (GERD), and other than an ulcer disorder, including as due to service-connected PTSD, is remanded. In an October 2020 CAVC-approved JMPR, CAVC remanded the Board’s decision to deny the claims of service connection for a back disorder and a gastrointestinal disorder, finding the Board did not ensure substantial compliance with prior remand orders and did not provide an adequate statement in support of its denial of the aforementioned claims. 10/01/2020, CAVC Decision. The JMPR then indicated that the Board shall obtain a VA medical opinion that adequately discusses the Veteran’s post-service reports of symptoms for a back disorder, as well as a VA medical opinion to determine whether Veteran’s service-connected PTSD led to alcohol use that has aggravated his gastrointestinal disorder. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing directive # 1, obtain an addendum opinion from an appropriate clinician regarding nature and etiology of any diagnosis of a back disorder. An in-person examination is not required unless deemed necessary by the clinician. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address: (a.) Whether it is at least likely as not (probability of at least 50 percent or more) that any diagnosed back disorder had its onset in or is otherwise related to the Veteran’s period of active service. (b.) Whether it is at least as likely as not (probability of 50 percent or more) that that any diagnosed back disorder (i) manifested to a compensable degree within one year March 11, 1970, or (ii) was noted during service with continuity of the same symptomatology since service. The clinician must discuss the Veteran’s post-service reports of symptoms. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing directive # 1, obtain an addendum opinion from an appropriate clinician regarding nature and etiology of any diagnosis of a gastrointestinal disorder including gastroesophageal reflux disease (GERD), and other than an ulcer disorder. An in-person examination is not required unless deemed necessary by the clinician. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address: (a.) Whether it is at least likely as not (probability of at least 50 percent or more) that any gastrointestinal disorder had its onset in or is otherwise related to the Veteran’s period of active service. (b.) Whether it is at least as likely as not (probability of 50 percent or more) that any gastrointestinal disorder is proximately due to or the result of a service-connected disability, to include but not limited to PTSD. (c.) Whether is it as likely as not that any gastrointestinal disorder is aggravated (increased in severity beyond the natural progression) by a service-connected disability, to include but not limited to PTSD. The clinician must specifically address whether the Veteran’s PTSD led to alcohol use that has aggravated his gastrointestinal disorder. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.