Citation Nr: 22017756 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 19-15 040 DATE: March 26, 2022 ORDER Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a left hip disorder is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's PTSD manifested with occupational and social impairment with deficiencies in most areas without total social and occupational impairment. CONCLUSION OF LAW The criteria for a rating of an initial 70 percent for PTSD have been met. 38 U.S.C. § 1155, 5107; 8 C.F.R. §§ 3.102, 4.14.14, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1969 to June 1971, to include combat service in the Republic of Vietnam. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board in November 2021. A transcript of the hearing has been associated with the claims file. In a March 2019 rating decision, the agency of original jurisdiction (AOJ) granted a 50 percent rating, effective March 4, 2015, for the Veteran's PTSD. However, a higher rating is available for PTSD. The Veteran is presumed to seek the maximum available benefit for a disability. As such, this claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In the evidence of record, the Veteran raised the issue of entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Therefore, the Board has recharacterized the issues on appeal to include the issue of entitlement to a TDIU. In a November 2021 statement, the Veteran indicated that he no longer wished to have his formerly appointed Veterans Service Organization represent him in the instant appeal. Therefore, the Veteran is considered to be proceeding pro se in this appeal. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. 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 the 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. 1. Entitlement to a 70 rating for PTSD is granted. The Veteran contends that his PTSD symptoms have increased in severity. See May 2019 VA Form 9. Under the General Rating Formula for Mental Disorders, a 50 percent rating 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 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; difficulty in establishing and maintaining effective work and social relationships 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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; and the inability to establish and maintain effective relationships. Id. The maximum schedular rating of 100 percent is warranted when there is 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; and memory loss for names of close relatives, own occupation or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that " § 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." The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was certified to the Board in September 2017. As such, the DSM-5 applies, and the GAF scores will not be considered. An April 2015 Disability Benefits Questionnaire (DBQ) report indicated that the Veteran was diagnosed with PTSD. He reported having strained relationships and being alienated from others. He reported that he was married with grown children. The Veteran reported symptoms of depressed mood, anxiety, panic attacks occurring weekly, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control. The examiner summarized the Veteran's occupational and social impairment as deficient in most areas, such as work, school, family relations, judgment, thinking and/or mood. During a May 2015 VA examination for his PTSD, the Veteran explained that he and his wife are currently living together in their home. The Veteran explained that he and his wife have been married for 44 years. The Veteran explained that his relationship with his wife would be improved if he was not experiencing symptoms of PTSD. The Veteran explained that he and his wife have two sons, ages 46 and 41. The Veteran explained that he has "great" relationship with his sons. However, the Veteran also stated that his relationships with his sons are impacted by his isolation at times. The Veteran stated that he, "really don't have friends, [he] just have associates. [He] really don't have friends, other than relatives." The Veteran stated his social activities included coaching AAU basketball, doing yardwork and attending church. The Veteran explained that he is retired. The Veteran reported that he is currently receiving psychiatric care through the Department of Veterans Affairs. The Veteran explained that he is in the process of initiating individual therapy. The Veteran explained that he has not been prescribed medication for any psychiatric concerns. The Veteran explained that he has not been hospitalized for any psychiatric concerns. The examiner observed that the Veteran's appearance was casual, and he was appropriately dressed. His speech was within normal limits. His thought process was normal and there was no evidence of delusions or hallucinations. The Veteran reported symptoms of hypervigilance about the security of his home, panic attacks, sleep impairment, feelings of detachment or estrangement from others, irritable behavior and angry outbursts, persistent negative emotional state, markedly diminished interest or participation in significant activities, avoidance of or efforts to avoid external reminders, recurrent, involuntary, and intrusive distressing memories of the traumatic event, recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event. The Veteran denied substance abuse. The examiner summarized the Veteran's occupational and social impairment as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In an August 2016 psychiatric treatment plan, it was noted that the Veteran was having marital conflict because of his disengagement and sleep issues pertaining to his restlessness, nightmares and night sweats. Also, it was noted that it appeared that his PTSD symptoms likely are complicated with his time as a State Trooper, as he tries to make efforts to avoid triggers like war movies and police or military -related programs. During a February 2019 VA examination for his PTSD, the Veteran reported that he served as a state policeman for over 20 years, and afterwards he taught job skills at a tech high school and worked as a behavior specialist. He reported earning a bachelors' degree in sociology and worked as an educator for IPS schools for the last 16 years. He reported coming from a close-knit family. The Veteran explained that his sleep is easily disrupted, and he sleeps about three hours a night. He stated it takes him a long time to fall asleep. He reported he is easily agitated and remarked he, "often loses it and says things he shouldn't say." He explained that he becomes extremely irritable. He explained he is easily startled by loud noises and hypervigilant. He explained he often thinks about the men that were killed in combat and questions, "why did I make it and someone else didn't?" He reported he attends counseling at the VA to address such issues. The examiner noted symptoms of anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner summarized the Veteran's occupational and social impairment as impairment with reduced reliability and productivity. In a May 2019 statement by his wife, she explained that the Veteran has severe mood swings. She explained that he gets anxious or angry when things are out of control then depression sets in. She explained that he left the public school system because of his intolerance and that his grandchildren think he is being angry or upset with them because he is regimented with them. However, his wife believes he is projecting his anxiety on his grandchildren. She explains that the Veteran is obsessed with the notion of death and that when a family member or friend dies, he goes into panic mode. She explains that he becomes obsessed with visiting sick people in the hospital and attending every funeral even if it is inconvenient. During the November 2021 Board hearing, the Veteran testified to working for the state police for 21 years and then in education for 16 years (pg.3). He stated that he retired from work, because he was afraid of what would happen if he got angry (pg.4). The Veteran stated that he has an anger problem, knowing that anything will set him off. He admitted to not getting angry with the kids he worked with but knew he had to leave and retire (pg.5). He also stated that he retired, because he did not want to face people. He preferred to stay away from crowds (pg.6). He stated that he has to put things in order like a ritual and he constantly check doors (pg.3). He explained that if anything drops it startles him and that he cannot sleep because, "it's always like someone is watching [him], and [he's] seeing things." (pg.3) He also states that he, "can feel them" (pg.6). The Veteran's wife stated during the hearing that the Veteran is socially awkward and that he likes to maintain control. She also stated that she must fall in line to what he tries to control (pg.7). She stated that he gets angry and cuss, but he has never been physically abusive (pg.7). She also stated that he has a lot of anxiety and often warns her about her safety. She explained that he keeps a gun on every level of their tri-level house (pg.8). She also stated that he has night terrors when he thinks someone is watching him. He patrols the house at night when he cannot sleep (pg.9). The Board notes that a review of the record shows that the Veteran has received treatment for his PTSD from both VA Medical Centers and private providers. However, there is no indication from the record that the Veteran's symptoms are worse than those reported in the various records discussed above. Based on the foregoing, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran is entitled to an initial rating of 70 percent, but not higher, for his PTSD throughout the period on appeal. In this regard, the Board notes that the Veteran had occupational and social impairment with deficiencies in most areas but not total occupational and social impairment. Impairment to mood was demonstrated as the Veteran consistently reported anxiety, restlessness, and hypervigilance. Impairment to thinking was demonstrated as the Veteran endorsed some sensory and visual hallucinations frequently while trying to sleep as if someone was standing over him and watching him. Some impairment to family relations was demonstrated as the Veteran endorsed staying away from people ad not wanting to go out in public, as well as, conducting angry outbursts to family members including his wife and grandchildren. The Veteran and his wife also endorsed obsessional rituals by trying to control his environment and obsessing about putting things in order. The Veteran also endorsed difficulty with adapting to stressful situations like work because of his angry outbursts. Although the Veteran did not endorse suicidal or homicidal ideations, his wife described his obsession with death and the dying. Therefore, occupational and social impairment with deficiencies in most areas was demonstrated. However, throughout the period on appeal, the Board also finds that the Veteran is not entitled to a rating in excess of 70 percent for PTSD. In this regard, the Board notes that the Veteran does not have total occupational and social impairment as a result of his PTSD. Total social impairment was not demonstrated as the Veteran maintained a relationship with his wife for over 40 years as well as his adult children and grandchildren. The record does not reflect, and the Veteran has not alleged, gross impairment in thought processes or communication, grossly inappropriate behavior, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), persistent danger of hurting self or others, disorientation to time or place or and memory loss for names of close relatives, own occupation or own name. The Veteran consistently denied suicidal or homicidal ideation and there is no evidence or allegation that the Veteran was a persistent danger of hurting himself or others. Although the Veteran endorsed hallucinations, there was no indication that the Veteran was not oriented to person, time, or place or that such hallucinations were persistent. Rather, the Veteran consistently presented as oriented to all spheres. There was no indication from the record that the Veteran was unable to maintain his personal hygiene as a result of his PTSD and he was able to manage his financial affairs. Therefore, a rating in excess of 70 percent is not warranted at any time. 38 C.F.R. § 4.130, Diagnostic Code 9411. While the Board recognizes that the Veteran and his wife is competent to provide statements regarding the Veteran's observable symptomatology, they are not competent to provide an opinion regarding the severity of her symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability considering the rating criteria to be more persuasive than the Veteran's reports regarding the severity of his condition. Thus, after considering his contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a higher rating have been met. The Rating Schedule contemplates such impairment under the ordinary conditions of daily life. 38 C.F.R. § 4.10; see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Board has considered whether staged rating under Fenderson v. West, supra is appropriate; however, the Board finds that his symptomatology was been stable throughout his current appeal period. Therefore, assigning a staged rating is not warranted. The Veteran have not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Accordingly, the Board finds the evidence supports the assignment of a 70 percent rating, but not higher throughout the period on appeal. To that extent, the appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 2. Entitlement to service connection for a left hip disorder is remanded. The Veteran contends that he incurred a left hip injury while jumping out of a plane with his M60 machine gun during a rescue in combat. See Hearing Transcript (pg. 12). The Veteran was awarded a combat infantrymen badge for his service in Vietnam. See DD Form 214. Thus, the Veteran is considered to be a combat Veteran. Service treatment records are silent to any complaints, treatments, or diagnosis of his left hip. Post-service treatment records reveal the Veteran was diagnosed with osteoarthritis of the left hip in 2010. The Veteran also had a left hip joint replacement in August 2010. The Veteran was afforded a VA examination in October 2015, the examiner opined that the Veteran's left hip osteoarthritis is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that review of medical literature indicates that although osteoarthritis is more common in older people, younger people can develop it, usually as the result of a joint injury, a joint malformation, or a genetic defect in joint cartilage. The examiner opined that the Veteran's service treatment records are negative for findings of a left hip injury and although he had a left hip replacement in 2010, because it is 40 years after his contended injury, it is less likely than not that his left hip osteoarthritis was due to an injury he sustained during his military service in 1969 requiring a replacement forty years later. However, the Board finds this opinion to be inadequate for adjudicative purposes. The examiner emphasized that osteoarthritis can be a result of a joint injury but concluded there was no nexus for the Veteran's current osteoarthritis with his sustained hip injury during service because there is an absence of evidence in his service treatment records. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran's reports of in-service injury and instead relied on the absence of evidence in a Veteran's service treatment records to provide a negative opinion). Further, the examiner did not sufficiently explain why the Veteran's hip injury did not result in osteoarthritis in this instance. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis the Board can consider and weight against contrary opinion"). Therefore, this etiology opinion is inadequate to decide the claim. On remand, an addendum opinion that address the Veteran's contentions is required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 3. Entitlement to a TDIU is remanded. Finally, the issue of a TDIU has been raised by the record when the Veteran stated he had to retire from working in the public school system because of his impulse towards angry outbursts. See Hearing Transcript (pg. 5&6). Further, it was emphasized in the August 2016 Psychiatric Treatment Plan that his PTSD symptoms likely are complicated with his time as a State Trooper. The AOJ should send the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to determine his work and education history, as well as, notice of how to substantiate a claim for a TDIU. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed 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. Send the Veteran and his representative a notice letter informing him of what is needed to substantiate entitlement to TDIU and of the allocation of responsibilities between the Veteran and VA for obtaining relevant evidence on his behalf. Perform any additional development with respect to the claim for a TDIU, to include obtaining from the Veteran a detailed statement regarding his educational attainment, post-service work history, and additional training (VA Form 21-8940). 3. Following the receipt of outstanding records, obtain an etiology opinion as to the nature and etiology of the Veteran's claimed left hip disorder. The claims file, to include a copy of this remand, should be made available to the examiner. The need for further in-person examination is left to the discretion of the examiner. The examiner must provide an opinion regarding the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed left hip disorder related to an in-service injury, event, or disease? The examiner should indicate whether the left hip disorder at least as likely as not (i) began during active service, (ii) manifested within one year after discharge from service, or (iii) was noted during service with continuity symptomatology since service. Ensure that any medical opinion obtained includes a complete rationale for the conclusions reached. Any medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; any medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.