Citation Nr: 22041709 Decision Date: 07/21/22 Archive Date: 07/21/22 DOCKET NO. 20-25 789 DATE: July 21, 2022 ORDER Service connection for a left shoulder condition is granted. An evaluation of 70 percent, but not higher, for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, the Veteran has a left shoulder condition that was incurred in or related to his active duty. 2. The Veteran's PTSD symptoms have been manifested, at worst, by occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The Veteran's left shoulder condition was incurred in or related to his active-duty service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for a disability rating of 70 percent, but not higher, for the Veteran's service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to July 1969. These matters come before the Board of Veterans' Appeals on appeal from a September 2018 rating decision. Service Connection Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in, or aggravated by, active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A claim will be denied if the evidence persuasively weighs against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 3.102. 1. Service connection for a left shoulder condition is granted. The Veteran contends his left shoulder condition is related to a football injury he sustained during active service. See June 2020 VA Form 9. The first and second elements of service connection are established by the evidence. As to a current disorder, the record reflects a left shoulder pathology, specifically degenerative arthritis. See, e.g., July 2018 Physician's Letter. Regarding an in-service event, the Board observes the Veteran's service medical records document a football injury to the left shoulder in addition to chronic complaints of left shoulder symptoms. The Board finds the appeal turns on whether the record contains competent and credible evidence showing a nexus between the Veteran's current left shoulder condition and the in-service injury he sustained during active service. A VA examiner provided a negative nexus opinion for the shoulder in August 2018. The examiner noted they were unable to confirm the onset of a left shoulder condition during active duty, because they found service medical records were silent for a shoulder injury. The examiner further noted VA medical records show the Veteran played football since the age of six and had a lumbar injury from football during active duty. The examiner then concluded that the Veteran's long history of playing football likely impacted his left shoulder from wear and tear. The Board does not find this opinion probative for several reasons. First, the examiner's opinion holds less probative value, because it does not appear to consider all the relevant evidence of record, particularly the Veteran's report of continuous left shoulder symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Next, the examiner's finding that the Veteran's long history of football likely impacted his left shoulder due to wear and tear is conclusory and inadequate without supporting explanation or rationale. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Most importantly, despite the examiner finding otherwise, the Board observes that the Veteran's service medical records do document a left shoulder injury and reflect ongoing left shoulder problems. For example, in October 1967, an examiner noted an "a-c separation" due to a football injury, and an orthopedic consult was planned. A marked deformity of the left shoulder was also noted in October 1967, and imaging showed a dislocated acromioclavicular joint. Limited range of motion was noted along with possible ligament tears on the subsequent imaging report. A November 1967 treatment record includes the notation that the Veteran was to have his left shoulder checked. Finally, in August 1968, the Veteran reported complaints of pain in the left shoulder and arm, and a history of an "AC separation" was noted. As the examiner's opinion relies at least in part on the inaccurate factual premise of no evidence of shoulder injury in service treatment records, the opinion has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Additionally, a positive nexus opinion is of record from July 2018. In it, the private provider notes that based on the Veteran's report of his in-service left shoulder injury, previous injuries to the acromioclavicular joint can lead to the formation of degenerative arthritis later in life, which could have contributed to his present condition. Since the Veteran's service medical records do reflect an injury to the acromioclavicular joint and subsequent left shoulder symptoms, the Board finds the positive nexus opinion to be probative. Therefore, given the probative evidence from the positive nexus opinion linking the in-service left shoulder injury to the Veteran's present left shoulder arthritis, the Board finds service connection is warranted. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A claim will be denied if the evidence persuasively weighs against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 2. An evaluation of 70 percent, but not higher, for PTSD is granted. VA received the Veteran's application for an increase to his service-connected PTSD disability on July 24, 2018. He contends he is entitled to a rating of 70 percent or higher for his service-connected PTSD. See June 2020 VA Form 9. For the reasons discussed below, the Board finds the Veteran's service-connected psychiatric condition warrants an evaluation of 70 percent. Currently, the Veteran's PTSD is assigned a 50-percent rating under Diagnostic Code 9411, for PTSD. Like most mental health disorders, PTSD is evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. See 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula, a 30-percent disability rating requires: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events). Id. A 50-percent disability rating requires: 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70-percent disability rating requires: 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 work-like setting; inability to establish and maintain effective relationships.). Id. A 100-percent disability rating requires: 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. Id. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list but rather 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, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. Rather, VA must consider all symptoms of a claimant's condition affecting their occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (4th ed. 1994) (DSM-IV) or the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-V). If the evidence demonstrates the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2018); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Accordingly, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See Vazquez-Claudio, 713 F.3d at 118. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126. Turning to the evidence of record, the August 2018 examiner found the Veteran's occupational and social impairment consists of reduced reliability and productivity. At that examination, the Veteran reported divorcing in 2012 and not being involved in any relationships, just having "associates" because he does not get "tied down." He indicated he talks to other veterans and enjoys fishing with friends. He reported working at a VA hospital since 2005, having constant conflict with his supervisors, and being written up in 2015 for being discourteous. He denied having had any inpatient hospitalization for his mental health problems but reported seeing a psychiatrist every 90 days. He denied suicidal ideation and having attempted suicide. He reported having had "thought[s] of killing the enemy" and a history of thoughts of hurting others but did not identify a specific person. He denied any current homicidal ideation. The examiner recorded the Veteran's symptoms as irritable behavior and angry outbursts; hypervigilance; exaggerated startle response; problems with concentration; depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and a difficulty in adapting to stressful circumstances, including work or a work-like setting. No other symptoms were indicated. The examiner found the Veteran casually dressed and appropriately groomed, with appropriate eye contact, normal speech, irritable mood, congruent and appropriate affect, and the capability to manage his own financial affairs. VA treatment records from October 2018 show a notation that the Veteran had a positive screen for risk of suicide. In December 2018, a provider updated the suicide risk level to "chronic low." The Veteran received another VA examination in February 2020. The examiner found the Veteran's occupational and social impairment to consist of an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported still living alone and indicated he had not been dating. He reported having occasional contact with his five living siblings. He also reported having five children, speaking to his eldest daughter monthly but not speaking to three of the others in about four years. He endorsed maintaining contact with some friends from the military. He reported taking occasional walks, going to restaurants for most of his meals, going to the movies, and going to church each week. For employment, he reported working for the VA for 16 years. He noted he misses one to two days a week of work due to his PTSD symptoms but still gets his work done overall. The examiner recorded the Veteran's symptoms of irritable behavior and angry outbursts; hypervigilance; exaggerated startle response; depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; and a difficulty in establishing and maintaining effective work and social relationships. On examination, the Veteran's behavior, speech, and thought processes were found to be within normal limits. He was oriented to four spheres with no evidence of suicidal or homicidal ideation or other symptoms. The examiner found the Veteran capable of managing his financial affairs. In March 2020, the Veteran received a psychiatric evaluation. The Veteran reported nightmares and flashbacks as well as irritability and angry outbursts causing conflicts at work. He was dressed in casual attire, and he had groomed himself fairly. His hygiene was noted to be fair. His behavior was guarded. Psychomotor disturbance was not found. No abnormal, involuntary movements were observed. Speech was of a normal rate, tone, and volume, with good articulation. His mood was noted to be irritable. His affect was congruent to mood. Thought process was circumferential. Associations were fair. Thought content was noted to include passive thoughts about death with no active suicidal or homicidal ideation. A significant mistrust of others was noted. No auditory or visual hallucinations were found. The Veteran was found to be orientated to four spheres. Attention and concentration and recent and remote memory were found to be intact. Language was fluent with good comprehension. Fund of knowledge was intact. Insight and judgment were both found to be fair. The Veteran received a VA examination in December 2020. The examiner found the Veteran's occupational and social impairment to consist of reduced reliability and productivity. The Veteran reported having been in a romantic relationship that he characterized as being up and down. He indicated his children stay away, because they believe he is mean. He noted the tendency to isolate but having one friend since prior to his active service. He reported having problems with trust, and he views the world as a dangerous place. He also indicated experiencing hypervigilance in public, and he avoids crowds. He reported often experiencing irritability around others and has a history of verbal outbursts. The Veteran reported working at the VA for 17 years, and he indicated a history of conflicts with coworkers and supervisors and calling into work sick due to a difficulty with managing his mental health. He denied incurring any legal challenges. He shared compulsively engaging in safety checking behaviors multiple hours each day. He stated he experiences a depressed mood and a lack of pleasure or engagement in significant activities. The Veteran noted he rarely smiles or laughs, and he experiences a lack of motivation to engage in self-care activities. The Veteran denied experiencing suicidal ideation. The Veteran's symptoms were found to include irritability and angry outbursts; hypervigilance; exaggerated startle response; problems with concentration; depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; a flattened affect; disturbances of motivation and mood; a difficulty in establishing and maintaining effective work and social relationships; and obsessional rituals that interfere with routine activities. The examiner found the Veteran to be oriented to four spheres and cooperative throughout the evaluation. The examiner observed him as dysthymic and with flattened affect. The Veteran was found to be capable of managing his financial affairs. During a January 2021 psychiatric evaluation, the Veteran reported going to church and Bible study and having relationships with two of his five living children. The evaluator noted his behavior as guarded. His speech was of a normal rate, tone, and volume, with good articulation. His mood was found to be anxious. His affect was congruent to mood. Thought process was noted to be circumferential. Associations were fair. Thought content was noted to include passive thoughts about death with no active suicidal or homicidal ideation. A significant mistrust of others was noted. No auditory or visual hallucinations were found, and the Veteran was found to be orientated to four spheres. Attention, concentration, and recent and remote memory were found to be intact. Language was fluent with good comprehension. Fund of knowledge was intact. Insight and judgment were both found to be fair. An April 2021 mental health note states the Veteran continues to have a difficulty with work due to his PTSD. The Veteran reported being able to stay in touch with other veterans, his siblings, and his fiancée, but he also reported often having difficulty with these relationships. He reported a worsening of nightmares, which were noted to cause sleep disruption. He indicated experiencing a difficulty with enjoyment and stated feeling he is constantly trying to survive. He reported having chronic intermittent passive ideation but no active suicidal or homicidal ideation. No auditory or visual hallucinations were found. The Veteran submitted a PTSD disability benefits questionnaire (DBQ) from March 2022. The evaluator found the Veteran's occupational and social impairment to consist of deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. The Veteran reported having two marriages that ended in divorce and a recent engagement ending. He reported he planned to quit his current job due to stress. The Veteran's symptoms were listed to include irritable behavior and angry outbursts; reckless or self-destructive behavior; hypervigilance; exaggerated startle response; problems with concentration; depressed mood; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; an impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; a flattened affect; circumstantial, circumlocutory, or stereotyped speech; disturbances of motivation and mood; a difficulty in establishing and maintaining effective work and social relationships; an inability to establish and maintain effective relationships; an impaired impulse control, such as unprovoked irritability with periods of violence; a persistent danger of hurting self or others; and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran described his mood as up and down. He appeared guarded and visibly anxious with a circumferential thought process. No other symptoms were noted. The Veteran was found to be capable of managing his financial affairs. Considering the frequency, severity, and duration of the Veteran's psychiatric symptoms, the evidence shows his psychiatric disorder has approximated the criteria for a 70-percent rating from the date of claim, as there is insufficient evidence to identify a worsening within a year of the claim. During this time, his symptoms have been primarily marked by irritability and angry outbursts; hypervigilance; depressed mood; anxiety; suspiciousness; panic attacks; chronic sleep impairment; a disturbance of motivation and mood; a difficulty in establishing and maintaining effective work and social relationships; a difficulty in adapting to stressful circumstances, including a work or a worklike setting; and suicidal ideation. The evidence shows the Veteran has experienced passive suicidal ideation. Suicidal ideation, alone, can be a sufficiently severe symptom to warrant a 70-percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). In this case, the evidence shows the Veteran consistently experienced that symptom throughout the appeal. Moreover, the symptoms of difficulty adapting to stressful circumstances, including work or worklike setting, and irritability and angry outbursts leading to conflicts at work are consistent with the 70-percent criteria. The evidence also shows impaired concentration, very limited social interactions, panic attacks, and depression that would contribute to deficiencies in most areas. As such, from the July 24, 2018, date of claim forward, the Board finds the Veteran's symptoms meet the criteria for a 70-percent rating for his service-connected PTSD. See 38 C.F.R. §§ 4.3, 4.130, DC 9411. However, a 100-percent disability rating is not warranted for the Veteran's PTSD at this time. While the Veteran has demonstrated significant symptoms associated with his psychiatric disorder, the overall evidence is not reflective of total occupational and social impairment. Instead, the evidence shows the Veteran has maintained some social relationships. For example, the Veteran has reported having some friends with whom he maintains communication and shares social activities, such as fishing, and although he has reported a strained relationship with his siblings and children, he maintains a relationship with some of his siblings and children. Although the Veteran experienced some problems with concentration and memory loss, the record reflects he has maintained employment as of the March 2022 DBQ and generally completed his work duties despite his psychiatric symptoms. His difficulty managing stress and angry outbursts/impaired impulse control were considered in the award of the 70-percent rating. The March 2022 report notes an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), but this finding is not consistent with the other evidence of record. The Veteran has been found to be appropriately groomed and with fair grooming and hygiene. Moreover, the Veteran reported attending church, going to restaurants frequently, and going to the movies without incident. He also interacted appropriately with providers and evaluators. Similarly, the symptom of suicidal ideation strongly influenced the award of the 70-percent rating, but the overall evidence does not support the March 2022 evaluator's finding that the Veteran is a persistent danger to himself or others. VA treating evaluators found the Veteran was a low risk for suicide, and as noted, the Veteran's suicidal ideations did cause any significant impairment in his ability to work, dine out, or attend church regularly. Additionally, there is no evidence of gross impairment in thought processes, content, orientation, or communication, which could suggest a level of impairment consistent with 100-percent disability. In sum, the Board finds the Veteran's impairment from his PTSD is most consistent with occupational and social impairment with deficiencies in most areas but not total occupational and social impairment. A 70-percent rating is warranted. A. P. Armstrong Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.