Citation Nr: A25041280 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 210707-170723 DATE: May 6, 2025 ORDER An initial rating in excess of 30 percent for posttraumatic stress disorder is denied. An initial compensable rating for residuals of fracture, right little finger, is denied. An initial compensable rating for residuals of fracture, right ring finger is denied. REMANDED Entitlement to service connection for lumbosacral strain, intervertebral disc syndrome, and degenerative disc disease, is remanded. FINDINGS OF FACT 1. The Veteran's service-connected posttraumatic stress disorder manifest in, at worst, 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, throughout the period on appeal. 2. The residuals associated with the Veteran's service-connected fracture of the right little finger manifest in, at worst, normal range of motion throughout the period on appeal. 3. The residuals associated with the Veteran's service-connected fracture of the right ring finger manifest in, at worst, normal range of motion throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for an initial compensable rating for residuals of fracture, right little finger, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230. 3. The criteria for an initial compensable rating for residuals of fracture, right ring finger, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 2004 to April 2008, October 2008 to March 2009, June 2009 to May 2010, July 2010 to March 2011, and from November 2012 to February 2013 with service in Afghanistan. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2021 higher-level review (HLR) decision issued by the Agency of Original Jurisdiction (AOJ). In the July 7, 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the March 2020 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim of entitlement to service connection for lumbosacral strain, intervertebral disc syndrome, and degenerative disc disease, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). Legal Authority Increased Ratings 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 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. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the Veteran's medical history. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). When determining the appropriate disability rating to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). A Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder. The Veteran contends he is entitled to a higher rating for his service-connected posttraumatic stress disorder. The Veteran has been in receipt of a 30 percent evaluation for service-connected PTSD throughout the period on appeal. Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted when there is 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, recent events). 38 C.F.R. § 4.130, Diagnostic Code (DC) 9433. A higher 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 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. Turning to the evidence, the Veteran filed a claim of entitlement to service connection for PTSD in October 2019. With his claim the Veteran submitted a statement describing his experiences in Afghanistan working in a high stress environment "outside the wire" having experienced gun fire, mortar and rocket attacks, and vehicle borne improvised explosive devices (VBIED's). He described seeing Afghan civilians beaten by police and being forced to shoot at approaching vehicles that got too close to his convoy. Lastly, he described a mission during which he was forced to sit next a suspected VBIED for approximately 10 minutes due to unassailable road conditions, although the vehicle did not detonate. The Veteran underwent a compensation and pension (C&P) examination in November 2019 associated with the claim during which his PTSD diagnosis was confirmed. The examiner summarized the Veteran's level or occupational and social impairment with 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. The examiner determined that the Veteran suffers from anxiety, suspiciousness, chronic sleep impairment, and mild memory loss, such as forgetting names, directions or recent events. No other symptoms were attributed to the Veteran's PTSD. The Veteran was noted to have arrived on time for the examination, casually dressed, with fair hygiene. The Veteran was reported to be cooperative throughout the interview, and oriented to person, place, time, and event. The Veteran's speech was noted as normal in rate, rhythm and volume, even though his mood was noted as anxious. The Veteran was able to make and maintain eye contact often throughout the interview; and his thought process was noted as linear and goal directed, with no problems in long- or short-term memory recall. The Veteran denied experiencing hallucinations, homicidal and suicidal ideation, and no evidence of delusional thinking was noted. Lastly, the examiner noted that the Veteran exhibited fair insight and judgement. The Board notes that the above symptomatology most closely approximates that of a 30 percent evaluation under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Based on the results of the above examination the Veteran was granted service connection and assigned a 30 percent evaluation in a March 2020 rating decision. The Veteran requested higher-level review which confirmed and continued the 30 percent evaluation in a May 2021 rating decision. With his appeal to the Board, the Veteran submitted statements in support of his claim to a higher evaluation by both him and his spouse. In his statement the Veteran describes an overall feeling of anxiety on some days that has resulted in him calling off work. He further describes being easily angered resulting in altercations with his father and coworkers. Lastly, the Veteran describes being depressed and thinking about suicide "at times." In her statement, the Spouse also purported that the Veteran told her that he has had thoughts of suicide "in the past." The Board notes that the description of manifestations in both statements are markedly more severe than those reported by the Veteran during his VA examination. Notably, during the Veteran's VA examination he explicitly denied having thoughts of suicide. In this regard, the Board is mindful of the Court's decision in Bankhead v. Shulkin, in which the Court held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, a 70 percent disability rating under the General Rating Formula for Mental Disorders. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Court in Bankhead discussed the definition of suicidal ideation as "'[t]houghts of engaging in suicide-related behavior' with 'various degrees of frequency, intensity, and duration.'" Bankhead, 29 Vet. App. at 19 (quoting Dept. of Veterans Affairs & Dept. of Defense, VA/DoD Clinical Practice Guideline for Assessment and Management of Patients at Risk for Suicide 13 (June 2013)). The Court went on to discuss the differences between passive and active suicidal ideation stating, "both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death." Bankhead, supra. In Bankhead, the claimant was noted to have had "recurrent" suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. Bankhead, 29 Vet. App. at 19-23. Ultimately, the Court in Bankhead determined that the rating criteria does not differentiate between passive and active suicidal ideation, but rather it is the actual effects of the symptom on occupational and social situations that determine its severity and whether the 70 percent evaluation is warranted. Id. The facts and evidence in this case are quite distinct from those which supported the findings in Bankhead. In Bankhead, the Veteran's record was described as being "replete with thoughts of death and suicidal ideation, ranging from passive thoughts to times when he reported thinking of drinking antifreeze" and so extreme at one point that the Veteran's wife felt the need to remove all guns from their home. Id. In this case, the Veteran has not reported varying degrees of recurrent suicidal ideation. The first mention of such was not until making his appeal to the Board when the Veteran and his spouse submitted statements alleging that the Veteran endorsed past instances of suicidal thoughts. The mention of suicide ideation in the statements is brief, vague, and without any detail. During the Veteran's VA examination, the examiner noted that the Veteran outright denied having suicide thoughts. Thus, the Board finds that the purported past thoughts are indicative of "passive" suicidal ideation. However, based upon the totality of the evidence, the Board does not find that such passive suicidal ideation warrants a higher rating. The plain language of 38 C.F.R. § 4.130 makes it clear that "a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration" and that "the veteran's impairment must be 'due to' those symptoms." Vazquez-Claudio, 713 F.3d at 115. This "requires not only the presence of certain symptoms" but also that those symptoms have caused the level of occupational and social impairment associated with that particular disability evaluation. Id. Although the Veteran's symptoms are the "primary consideration" in assigning a disability evaluation under § 4.130, the determination as to whether the Veteran is entitled to a particular evaluation "also requires an ultimate factual conclusion as to the veteran's level of occupational and social impairment." Bankhead, supra. Therefore, the holding in Bankhead does not create a compulsory award of a higher evaluation simply based on an assertion that the Veteran endorses suicidal ideation. To the contrary, Bankhead succinctly states that "the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level." Bankhead, 29 Vet. App. at 22 (citing Vazquez-Claudio, 713 F.3d at 115). Instead, the VA must "engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment." Id. Here, there is no evidence that the Veteran's purported past suicidal thoughts have resulted in a level of occupational and social impairment warranting a rating higher than that which is presently assigned. To the contrary, the Veteran reports being able to travel to where his children live with his ex-wife to see them as often as allowed; that he has a "wonderful" relationship with his current wife; that he has friends that he surrounds himself with; that he loves his job as an agent with Homeland Security, and that his work is unaffected. See PTSD Disability Benefits Questionnaire November 2019. The examiner found that the symptoms associated with the Veteran's service-connected PTSD result in occupational and social impairment with 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 based upon symptoms of depressed mood, anxiety, and suspiciousness. The Board notes that the above findings most closely approximate the presently assigned 30 percent evaluation. A 50 percent evaluation, or higher, is not warranted as the evidence does not show that the Veteran's symptoms result in 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; or difficulty in establishing and maintaining effective work and social relationships. Nor do his symptoms result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. While the Veteran asserted past instances of suicidal ideation, as previously noted herein, the evidence reflects that these instances were passive in nature and had little to no effect on the Veteran's occupational and social situations. For the foregoing reasons, the Board finds that the evidence is against the Veteran's claim for a rating in excess of 30 percent for PTSD. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130; Diagnostic Code 9411. Accordingly, entitlement to a rating in excess of 30 percent for posttraumatic stress disorder is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt rule and finds it not applicable as the evidence is not in approximate balance. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 2. Entitlement to an initial compensable evaluation for residuals of fracture, right little finger. 3. Entitlement to an initial compensable evaluation for residuals of fracture, right ring finger. The Veteran contends that he is entitled to a higher rating for the residuals of his right ring and little finger fractures. The Veteran has been in receipt of a noncompensable evaluation for the residuals of fractures of his right ring and right little fingers throughout the period on appeal. Under 38 C.F.R. § 4.71a, Diagnostic Code 5230 any limitation of motion of the ring or little finger warrants a 0 percent, noncompensable evaluation. There is no higher evaluation available for limitation of motion of these two digits under Diagnostic Code 5230. As such, the only pathway for increase of the Veteran's evaluation for residuals of his service-connected right ring and right little finger is by way of evaluation under an alternative diagnostic code for either favorable or unfavorable ankylosis. For the index, long, ring, and little fingers (digits II, III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand. The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal and proximal interphalangeal joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads. Only joints in these positions are considered to be in favorable position. For digits II through V, the metacarpophalangeal (MCP) joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal (PIP) joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal (DIP) joint has a range of zero to 70 or 80 degrees of flexion. 38 C.F.R. § 4.71a. When two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the rating schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable or favorable ankylosis, or limitation of motion), assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level. If there is limitation of motion of two or more digits, each digit is to be evaluated separately, and the evaluations then combined. Id. Turning to the evidence, during the Veteran's November 2019 C&P examination, the examiner evaluated the Veteran's right hand to assess the residuals associated with his fractured ring and little finger. The Veteran reported having difficulty with grip during cold climates but improvement in warmer climates. Initial range of motion (ROM) measurements were normal in the Veteran's right hand. Both the Veteran's ring and little finger ROM was MCP 0 degrees max extension, 90 degrees max flexion, PIP 0 degrees max extension, 100 degrees max flexion, and DIP 0 degrees max extension, 70 degrees max flexion. The Veteran was able to perform repetitive-use testing of the right hand with no loss of function or ROM in his right ring or right little finger. While flare-ups were reported and noted by the examiner to likely cause pain, weakness and lack of endurance, the examiner also noted that the Veteran's ROM would not be expected to change but rather the normal ROM would be more difficult due to the stiffness and weakness. There were no other contributing factors noted and the Veteran's muscle strength in the right hand was reported to be 5/5. Lastly and most notably, no ankylosis was noted in either the Veteran's right ring or right little finger. Based on the above examination findings, the Board notes that the limitation of motion associated with both the Veteran's right ring, and right little finger is noncompensable. Moreover, as neither favorable nor unfavorable ankylosis were noted, evaluation under Diagnostic Codes 5219, or 5223 is not warranted. The Board has considered the Veteran's July 2021 statement submitted within the 90-day evidence submission window. While it is the Veteran's subjective belief that he should be granted a higher evaluation because of the difficulty he has moving his right ring and right little fingers separately, making it hard for him to do certain activities, the limitation of motion associated with these two digits does not warrant compensability under the rating criteria. Accordingly, entitlement to initial compensable evaluations for residuals of fracture of the right ring and right little finger is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt rule and finds it not applicable as the evidence is not in approximate balance. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, supra. REASONS FOR REMAND Entitlement to service connection for lumbosacral strain, intervertebral disc syndrome, and degenerative disc disease, is remanded. The Veteran seeks service connection for a back injury he contends occurred during active service. In February 2020, the Veteran underwent a C&P examination associated with the claim. After purported review of the record and an in-person examination, the VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated that the there was no documentation in service treatment records of any acute thoracolumbar pain issues. The Board notes that STR's dated January 2013 reflect that during a post-deployment health screen, the Veteran reported experiencing back pain, along with numbness and tingling in his hands and feet. The examiner further stated that the Veteran has been diagnosed with repetitive lumbar sprain, wear and tear type injuries, resulting in degenerative disc disease. The examiner concluded that the medical records do not support that the diagnosed lumbosacral strain, intervertebral disc syndrome, degenerative disc disease, and radiculopathy of the left lower extremity were incurred in or caused by the back pain during service. When VA undertakes to provide Veteran's with a medical examination or obtain a medical opinion, whether statutorily obligated to do or not, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An adequate medical examination and opinion must rest on correct facts and reasoned medical judgment so that the Board may make an informed decision when considering and weighing the report against contrary reports. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). Where the record before the Board is inadequate to render a fully informed decision, a remand to the Agency of Original Jurisdiction (AOJ) is required in order to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claim. 38 U.S.C. § 5103A. The Board finds the February 2020 VA examiner's opinion and rationale conclusory in that the examiner did not address the facts involved. Moreover, the examiner attempted to support the conclusory opinion by relying on an absence of evidence in the Veteran's service treatment records, which turns out to be an inaccurate factual premise. First, the examiner stated that there were no reports of back pain during service, but later acknowledged the in-service report of back pain, numbness and tingling in the hands and feet but discounted it as being related to the Veteran's present claim without offering any explanation as to why the two are not related. Moreover, the Veteran filed the claim just seven years after separating from service. The Veteran's military occupational specialty (MOS) during service was an Air Force security police officer. The examiner determined that the Veteran's present disabilities were the result of repetitive lumbar sprains, wear and tear type injuries. However, the examiner did not give any explanation as to a more recent and likely cause of the Veteran's presently diagnosed back disabilities than the performance of the duties associated with the Veteran's MOS over the course of years of his military service and deployment. As such, the Board finds the February 2020 opinion inadequate and entitled to no probative weight. See Horn v. Shinseki, 25 Vet. App. 231, 240 (2012) (holding that "an unexplained conclusory opinion is entitled to no weight in a service-connection context"); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner relied on the absence of evidence in the service medical records to provide a negative opinion). Accordingly, remand is warranted to correct a pre-decisional duty to assist error and obtain an adequate medical opinion and rationale. The matters are REMANDED for the following action: 1. Forward the entire claims file, including this remand, to an appropriately qualified clinician. The examiner shall indicate in the report that the file was reviewed. The need for an additional in-person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should respond to the following question: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's claimed low back condition had its onset during active service, or is otherwise etiologically related to service? The examiner is asked to specifically address the Veteran's report of back pain, numbness and tingling of the hands and feet during his post-deployment health screening dated January 2013. A complete rationale for each of the opinions expressed must be provided. An opinion not rendered due solely to speculation without further explanation and support will not be deemed adequate. David H. Robertson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Schulte 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.