Citation Nr: 22016370 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-30 850 DATE: March 22, 2022 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for low back condition. Entitlement to 100 percent rating for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) for the appeal period from January 24, 2017 to July 13, 2017 is denied. REMANDED Entitlement to service connection for back condition as secondary to bilateral knee disability is remanded. Entitlement to service connection for right hip condition as secondary to bilateral knee disability is remanded. Entitlement to service connection for left hip condition as secondary to bilateral knee disability is remanded. Entitlement to service connection for respiratory condition is remanded. FINDINGS OF FACTS 1. In May 2012, the claim of entitlement to service connection for low back condition was denied; the Veteran did not appeal this decision and new and material evidence regarding the conditions was not received within the one-year appeal period. 2. Since the May 2012 rating decision denying entitlement to service connection for low back condition, new and material evidence has been received to reopen the claim. 3. Resolving reasonable doubt in the Veteran's favor, the severity, frequency, and duration of her PTSD symptoms more closely approximate total occupational and social impairment. 4. The Veteran's combined disability rating is 100 percent for the entire period on appeal. Although the Veteran has additional service-connected disabilities that are ratable to 60, she was not precluded from gainful employment for the appeal period from January 24, 2017 to July 13, 2017. CONCLUSIONS OF LAW 1. The May 2012 rating decision that denied service connection for low back condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The claim for service connection for low back condition is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for a 100 percent rating for PTSD have been 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. 4. The criteria for entitlement to a TDIU for the appeal period from January 24, 2017 to July 13, 2017 are not met. 38 U.S.C. §§ 1114 (s), 1155, 5107; 38 C.F.R. §§ 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to June 1984. The claims come to the Board of Veterans' Appeals (Board) from a March 2017 rating decision. The Veteran filed a notice of disagreement (NOD) in March 2017, which resulted in a May 2017 statement of the case (SOC). Thereafter, a substantive appeal was filed in May 2017, where she elected to have a hearing. The hearing occurred in October 2021 and the transcript is of record. Notably, the rating for the Veteran's PTSD was increased from 50 percent to 70 percent, effective June 8, 2017, by way of a February 2018 rating decision while the claim for increased rating was pending. The issue remains on appeal because the maximum rating possible was not assigned. AB v. Brown, 6 Vet. App. 35. (1993). The claim for TDIU was filed in June 2017, while the claim for increased rating for PTSD was pending. As such, it is part and parcel of the Veteran's claim for increased rating for PTSD, which was filed on January 24, 2017. Rice v. Shinseki, 22 Vet. App. 447 (2009). The agency of original jurisdiction (AOJ) granted TDIU effective July 14, 2017. However, because TDIU was not granted for the entire appeal period or withdrawn, the issue remains on appeal. 1. New and material evidence has been received to reopen a claim of entitlement to service connection for low back condition. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a); Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. The claim regarding the Veteran's low back condition was denied in May 2012. The Veteran did not appeal this decision or submit new and material evidence within one year of this decision. Accordingly, the May 2012 rating decision is final. Since the May 2012 rating decision, the Veteran was provided a VA examination for back condition in February 2017. To the extent this examination was not considered by the AOJ during the May 2012 adjudication, it is new evidence. New evidence will raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by obtaining an examination. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In this case, the new evidence in the record has already triggered the duty to assist, resulting in the February 2017 VA examination. The Board thus reopens the Veteran's claims of entitlement to service connection for low back condition for a de novo review on the merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Entitlement to 100 percent rating for PTSD is granted. The Veteran is seeking increased rating for her service-connected PTSD. A disability rating is determined by the application of VA's Schedule Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which two evaluations should be applied, 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. The Veteran's PTSD is currently assigned a 50 percent rating from January 24, 2017 to June 7, 2017, and 70 percent thereafter under DC 9411. A 70 percent disability rating is warranted when the veteran experiences occupational and social impairment, with deficiencies in most area, 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. A 100 percent disability 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; memory loss for names of closest relatives, own occupation, or own name.38C.F.R. §4.130. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi,16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. Accordingly, the evidence considered in determining the level of impairment is not restricted to the symptoms provided in the DC. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. Therefore, VA must consider all symptoms of a veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-5. Id. A staged rating is warranted, where there is evidence that the severity of a service-connected disability changed throughout an appeal period. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). In this case, staged rating is not warranted because there is no adequate evidence that shows that the severity of the Veteran's PTSD changed throughout the appeal period. Rather, the Veteran testified that her symptoms have consistently been the same since she filed her claim in January 2017. See hearing transcript at 11. After reviewing the evidence in light most favorable to the Veteran and affording her the benefit of the doubt, the Board concludes that a 100 percent rating is warranted throughout the appeal period. To that end, VA treatment records show that during a January 2017 evaluation, the Veteran's thought content was paranoid and delusional. In addition, the examiner noted that she had illusions, hallucinations, delusions, paranoia, irritability, and blunted affect. According to an emergency nursing assessment note from September 2017, the Veteran reported history of visual hallucinations, where she saw rats on the floor that were not there. In addition, the Veteran's PTSD is manifested by persistent danger of hurting others. According to a VA mental health note from February 2017, the Veteran had significant difficulty with relationships with co-workers. In fact, she reported having a desire to physically harm a co-worker at times. During a February 2017 VA examination, the Veteran reported getting easily aggravated by her roommates/coworkers and threatening to hurt them. According to an August 2017 addendum opinion, the Veteran's anger issues, difficulty concentrating, and difficulty getting along with others led to her termination from employment. In September 2017, the Veteran experienced severe rage that led to her threatening a man, who owed her $20, with her handgun. The Veteran had to be restrained to prevent her from going after the man. Thereafter, she was hospitalized due to acute homicidal ideation from September 20, 2017 to September 26, 2017. VA treatment records from October 2017 reflect that the Veteran continued to struggle with anger. The Veteran testified that she has not been able to maintain relationships with friends because of her anger. See hearing transcript at 14. She reported that her "anger is out of control" and she throws things. Id. at 8. Her testimony is consistent with statements from her friends submitted in September 2017, where they reported that the Veteran had significant difficulty controlling her rage. The friends described that she had "violent explosive episodes" and threw things at people. Moreover, the Veteran reported suicidal ideation. See September 2017 VA Mental Health Rapid Access Note. She threatened to harm herself in October 2017 and reported thought of suicide in December 2017, as well as during the hearing in October 2021. See hearing transcript at 7. Furthermore, the Veteran displayed inappropriate behavior to the extent she threatened to harm herself or others when denied medication in October 2017 and July 2020, respectively. Based on the foregoing, the Board finds that the competent and credible evidence is approximately balanced as to whether the severity of the Veteran's PTSD approximates a level contemplated by total occupational and social impairment. Under such circumstances, the benefit of the doubt doctrine applies. As such, the claim is granted. 3. Entitlement to a TDIU for the appeal period from January 24, 2017 to July 13, 2017 is denied. The Veteran contends that she is entitled to TDIU because her service-connected disabilities prevent her from securing or maintaining substantially gainful employment. See June 2017 VA Form 21-8940. As noted above, the Veteran is granted TDIU effective July 14, 2017; thereby, the benefit is granted in full for that stage of the appeal period. Accordingly, the issue remaining before the Board is whether a TDIU is warranted for the appeal period prior to July 14, 2017. A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155 ;38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, implementing the grant herein, for the entire period on appeal, the Veteran has a 100 percent combined disability rating. A TDIU is not available when there is a total schedular rating (100 percent), as in this case. An exception exists for the purposes of SMC under 38 U.S.C. § 1114 (s) when a veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350 (i). A TDIU may meet the criterion of a "single service-connected disability rated as 100 percent," but only if assigned for a single disability. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011). In this instance, the Veteran does not contend, and the evidence does not show, that the Veteran is entitled to a TDIU based on a single disability. Rather, she asserts that she is precluded from employment because of her PTSD, bilateral knee disability, and right shoulder disability. See June 2017 VA Form 21-8940. Furthermore, the Veteran's last employer reported that she was employed until July 14, 2017 and there is no indication that this employment was less than substantially gainful or in a protected work environment. Thus, even if she was claiming TDIU based on one disability, she would not be entitled to TDIU prior to July 14, 2017 as she had substantially gainful employment. In summary, a TDIU cannot be assigned based on any one of the Veteran's single service-connected disabilities for the purpose of SMC under 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350 (i). Therefore, a TDIU is not warranted for the period prior to July 14, 2017, and the claim is denied. REASONS FOR REMAND 4. Entitlement to service connection for back condition as secondary to bilateral knee disability is remanded. 5. Entitlement to service connection for right hip condition as secondary to bilateral knee disability is remanded. 6. Entitlement to service connection for left hip condition as secondary to bilateral knee disability is remanded. The Veteran contends that her back and bilateral hip conditions are related to gait change caused by her service-connected bilateral knee disability. In a claim for secondary service connection claim, causation and aggravation opinions need separate findings and rationales. Atencio v. O'Rourke, 30 Vet. App. 74 (2018). Here, the Veteran underwent VA examinations for back and bilateral hip disabilities in February 2017. Regarding the back disability, the examiner opined that it is less likely than not proximately due to or the result of the Veteran's service-connected bilateral knee disability. The examiner reasoned that the Veteran's "back condition is a result of her risk factors such as aging, past injuries & smoking." The examiner, however, did not address whether gait changes by the Veteran's bilateral knee disability is related to her current back disability. Moreover, the examiner did not provide an opinion as to whether the Veteran's back disability is aggravated by her service-connected bilateral knee disability. Similarly, the examiner concluded that the Veteran's bilateral hip condition is less likely than not proximately due to or the result of the Veteran's service-connected bilateral knee disability. The examiner attributed the Veteran's bilateral hip condition to aging, prior injury, or wear and tear caused by her civilian occupation. The examiner's opinion does not address whether the Veteran's bilateral hip condition is related to gait change caused by her bilateral knee disability. Nor does the examiner address whether her bilateral hip condition is aggravated by her service-connected bilateral knee condition. Based on the foregoing, the Board finds that the February 2017 VA medical opinions regarding the back condition and bilateral hip condition are inadequate and remand is warranted to obtain another opinion. 7. Entitlement to service connection for respiratory condition is remanded. The Veteran contends that her respiratory condition is etiologically related to jet fuel and exhaust exposure in service. The Veteran has a current disability of bronchitis. She was a special equipment repairer working on aircraft in service. See hearing transcript at 29. The Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether her current condition is related to her military service. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate VA examiner to provide an addendum opinion regarding the Veteran's back condition. The examiner should review the claims file in its entirety and answer the following questions: (a) Is the Veteran's back condition caused by her service-connected bilateral knee disability? AND (b) Is the Veteran's back condition aggravated by her service-connected bilateral knee disability? The examiner should specifically address whether gait change caused by the Veteran's bilateral knee disability causes or aggravates her back condition. Provide a rationale to support all opinions. 2. Forward the claims file to an appropriate VA examiner to provide an opinion regarding the Veteran's bilateral hip condition. The examiner should review the claims file in its entirety and answer the following questions: (a) Is the Veteran's bilateral hip condition caused by her service-connected bilateral knee disability? AND (b) Is the Veteran's bilateral hip condition aggravated by her service-connected bilateral knee disability? The examiner should specifically address whether gait change caused by the Veteran's bilateral knee disability causes or aggravates her bilateral hip condition. Provide a rationale to support all opinions. 3. Schedule the Veteran for a VA examination for her respiratory condition. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's respiratory condition related to service, including her exposure to jet fuel and exhaust exposure? In providing the requested opinion, consider the Veteran's description of her in-service symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Provide a rationale to support the opinion. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon 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.