Citation Nr: 22010516 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 16-56 376 DATE: February 23, 2022 ORDER An increased initial rating of 70 percent for service-connected posttraumatic stress disorder (PTSD) with a depressive disorder not otherwise specified (NOS) is granted. REMANDED The issue of entitlement to an initial rating in excess of 10 percent for chronic low back strain with degenerative disc disease is remanded. THE VETERAN'S CONTENTIONS The Veteran seeks entitlement to higher initial ratings for his service-connected chronic low back strain with degenerative disc disease and PTSD with a depressive disorder NOS. See November 2013 notice of disagreement; November 2016 VA Form 9; January 2017 correspondence; December 2021 correspondence. In a June 2021 Brief, the Veteran's representative contended that the Veteran meets the criteria for a 100 percent rating for his PTSD as the records show persistent threat of danger to himself and others since November 30, 2011, and listed details from medical records to support his claim. FINDING OF FACT The Veteran's PTSD with a depressive disorder NOS is productive of occupational and social impairment with deficiencies in most areas. Total occupational and social impairment have not been demonstrated. CONCLUSION OF LAW The criteria for an increased initial rating of 70 percent for PTSD with a depressive disorder NOS are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1996 to February 2002; active duty for training (ACDUTRA) from October 2002 to April 2003 and from June 2006 to December 2006; and active service from February 2008 to February 2009 and from September 2010 to September 2011. This matter is on appeal from February 2013 and April 2013 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018 and September 2021, these issues were remanded by the Board. The Veteran's PTSD with a depressive disorder NOS is currently rated 50 percent disabling under 38 C.F.R. § 4.130, DC 9411. The Board finds that a 70 percent rating is warranted throughout the appeal period. Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to such symptoms as: suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a worklike setting), inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, memory loss for names of close relatives, own occupation or own name. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The evidence shows that the Veteran has had multiple instances of suicidal ideation throughout the appeal period. See September 2016 private treatment record; May 2021 private medical evaluation; June 2021 Brief. As the Veteran expressed suicidal ideation throughout the appeal period, the Board finds that a 70 percent rating is warranted. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas"). While the Board finds that a 70 percent rating is warranted for the Veteran's PTSD with a depressive disorder NOS, the Board does not find that the evidence supports a 100 percent. The Board acknowledges the Veteran's contention that a 100 percent rating is warranted for his PTSD. Further, the Board notes that in May 2021, Dr. K.B. opined that the Veteran's mental health disorder more likely than not prevents him from maintaining substantially gainful employment since the date of his claim due to impairments in interpersonal relationships, re-experiencing symptoms, mood dysregulation, poor sleep, and potential violence to self and others. However, the evidence of record shows that the Veteran has been working and/or attending school throughout the appeal period. The September 2012 VA examination shows that the Veteran worked at Aldo for one and half months, and then at Cintas for three months. At the June 2016 VA examination, the Veteran reported that he continued working at a uniform supply company from the 2012 examination through the time he started school. He stated that he enrolled in college full time from 2013 through 2014, and that he worked at a pest control company after dropping out of school. At the time of the June 2016 VA examination, the Veteran was back in school full time and also working part-time at Lowe's. The May 2021 VA examination noted that the Veteran was working full time as a security guard since January 2021 and that his supervisor felt he was doing a good job. As the evidence shows that the Veteran has been working and/or attending school full time throughout the appeal period, total occupational impairment is not shown. In sum, the Board finds that a 70 percent rating, and no higher, is warranted for PTSD with a depressive disorder NOS. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, another remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran's claim for entitlement to an initial rating in excess of 10 percent for chronic low back strain with degenerative disc disease. It appears that records relevant to the Veteran's claim have not been associated with the claims file. The Board notes that records from Tri-State Orthopedic were associated with the claims file in November 2021 in compliance with the September 2021 remand directives. However, VA treatment records show that the Veteran had low back surgery in May 2017 with a private treating physician, Dr. G. See May 2017 through May 2018 VA treatment records. Records from Dr. G, to include records from him May 2017 low back surgery, are not contained in the claims file. These records must be requested and associated with the claims file. After all outstanding treatment records have been associated with the claims file, a VA retrospective medical opinion is warranted. At the November 2012 and May 2013 VA examinations, the Veteran reported flareups during work when he carried heavy objects and climbed up and down stairs. However, the November 2012 VA examination did not include any range of motion findings. The May 2013 VA examination showed forward flexion of 90 or greater with evidence of painful motion at 90 or greater and combined range of motion of 240 or greater. However, the May 2013 VA examination did not include an estimate of the Veteran's range of motion during flareups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The May 2016 VA examination showed forward flexion of 90 degrees and combined range of motion of 220 degrees. At that time, the Veteran reported no flareups. However, when asked whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over time, the examiner stated that he was unable to say without mere speculation. Further, treatment records from June 2016 through July 2018 indicate that the Veteran's condition may have worsened during that time period. A July 2016 private treatment record from Tri-State Orthopedics showed that the Veteran had an injection in June 2016 which improved his back and leg pain. A July 2016 VA treatment record shows forward flexion of 40 degrees. A July 13, 2018 VA treatment record noted, "lumbar flexion was 50% B rot. 0%, B sidebend 0%, extension 5%". Another note on the same day showed "lumbar flexion 30% with Gower's sign, B rot. 0%, B sidebend 5%, extension 55." VA treatment records also show a history of back surgery in May 2017, as noted above. In October 2020, an adequate VA examination was conducted showing forward flexion of 90 degrees and combined range of motion of 225 degrees and estimated functional loss during flareup as forward flexion of 90 degrees, extension of 15 degrees, right lateral flexion of 30 degrees, left lateral flexion of 30 degrees, right lateral rotation of 20 degrees, and left lateral rotation of 20 degrees. However, the examiner did not provide a retrospective medical opinion addressing the Veteran's condition prior to October 2020. As the VA examinations show flareups in 2012 to 2013 and the private and VA treatment records indicate that the Veteran's condition may have worsened between June 2016 through July 2018, the Board finds that a retrospective medical opinion is warranted to determine the severity of the Veteran's condition, to include during flareups, from September 17, 2011 through October 2020. The retrospective medical opinion must specifically acknowledge the July 2016 VA treatment record shows forward flexion of 40 degrees, the July 13, 2018 VA treatment record noting "lumbar flexion was 50% B rot. 0%, B sidebend 0%, extension 5%", and the July 2018 VA treatment record showing "lumbar flexion 30% with Gower's sign, B rot. 0%, B sidebend 5%, extension 55" on the same day, and explain how these measurements correlate to the degrees of range of motion evaluated at VA examinations. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify any outstanding, pertinent VA and/or private treatment records related to the claim on appeal, to specifically include records from the Veteran's low back surgery in May 2017 with Dr. G. After obtaining the necessary authorization form from the Veteran, obtain these records and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 2. Forward the Veteran's claims file to an appropriate VA clinician to provide a retrospective medical opinion addressing the severity of the Veteran's chronic low back strain with degenerative disc disease between September 17, 2011, the effective date of service-connection, through the October 19, 2020 VA examination. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. The clinician must then address the following: (a.) Range of motion (ROM) findings, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss from September 17, 2011 through October 19, 2020. Please acknowledge and consider the July 2016 VA treatment record showing forward flexion of 40 degrees; the notation of back surgery in May 2017; the July 13, 2018 VA treatment record noting "lumbar flexion was 50% B rot. 0%, B sidebend 0%, extension 5%"; and the July 2018 VA treatment record showing "lumbar flexion 30% with Gower's sign, B rot. 0%, B sidebend 5%, extension 55" on the same day; and explain how these measurements correlate to the degrees of range of motion evaluated at VA examinations. (b.) Based upon a review of the medical records and the Veteran's statements regarding his flareups during his VA examinations, estimate the Veteran's ROM during a flareup from September 17, 2011 through October 19, 2020. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.