Citation Nr: 18133675 Decision Date: 09/11/18 Archive Date: 09/11/18 DOCKET NO. 16-06 695 DATE: September 11, 2018 ORDER New and material evidence having been presented, the claim for entitlement to service connection for joint pains, osteitis pubis, left ankle arthritis, and calcaneal spurs is reopened. Entitlement to a disability rating in excess of 70 percent prior to October 6, 2016 for service-connected posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for joint pains, osteitis pubis, left ankle arthritis, and calcaneal spurs, to include as due to an undiagnosed illness or anthrax vaccinations is remanded. FINDINGS OF FACT 1. In an unappealed November 2011 rating decision, a claim to reopen a claim for entitlement to service connection for joint pains, osteitis pubis, left ankle arthritis, and calcaneal spurs was denied. 2. The evidence received since the November 2011 rating decision relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for joint pains, osteitis pubis, left ankle arthritis, and calcaneal spurs. 3. Prior to October 6, 2016, the Veteran’s service-connected posttraumatic stress disorder (PTSD) was not manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for entitlement to service connection for joint pains, osteitis pubis, left ankle arthritis, and calcaneal spurs. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for a rating in excess of 70 percent prior to October 6, 2016 for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to December 1991, including verified service in Southwest Asia from September 1990 to March 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in December 2012, May 2014, and September 2014 of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 1. Whether new and material evidence has been presented sufficient to reopen a claim for entitlement to service connection for joint pains, osteitis pubis, left ankle arthritis, and calcaneal spurs Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. 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). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In an April 1995 rating decision, the RO denied the Veteran’s claim of service connection for joint pains, osteitis pubis, left ankle arthritis, and calcaneal spurs. Specifically, the RO indicated that in-service complaints of bilateral ankle and pain and right shoulder pain were shown to involve temporary conditions which resolved with treatment with no further complaints. The next evidence of treatment for joint pain was in 1994, over 3 years after his service in the Persian Gulf. Accordingly, the conditions were not found to be chronic and as there was no evidence of treatment for arthritis within one year of service discharge, service connection was not warranted. An appeal was not received within a year of the rating decision, and the decision became final. Thereafter, the RO denied claims to reopen his service connection claim in June 1997, November 2002, August 2005, and November 2011. The RO indicated that the Veteran did not provide new and material evidence sufficient to link a chronic joint pain disability to his active service. An appeal was not received within a year of the rating decisions, and the decisions became final. Thereafter, the Veteran submitted a February 2016 private medical opinion finding that the Veteran “more likely than not suffers from a Gulf War related undiagnosed illness.” The physician noted review of the Veteran’s treatment records showing muscle and joint pain without a definable etiology and in-service notations of a skin condition on his hand. Additionally, the physician noted the Veteran’s sleep problems, episodic rhinitis, and memory issues. This opinion indicates a nexus between the Veteran’s symptoms and his period of active service, or relates to an unestablished fact necessary to substantiate the Veteran’s claim. Accordingly, new and material evidence has been received, and the claim of entitlement to service connection for joint pains, osteitis pubis, left ankle arthritis, and calcaneal spurs is reopened. 38 C.F.R. §3.156. 2. Entitlement to a disability rating in excess of 70 percent prior to October 6, 2016 for service-connected posttraumatic stress disorder (PTSD) Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 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 more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s PTSD is rated at 70 percent prior to October 6, 2016 under 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders (General Formula)). Under the General Formula, a 70 percent disability rating is warranted when the evidence shows occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the evidence shows 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. Ratings are assigned according to the manifestations of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board’s primary consideration is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Also relevant to the Board’s analysis is the Global Assessment of Functioning (GAF) score assigned to the Veteran, which is a scale that indicates the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240 (1995); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV); 38 C.F.R. § 4.130. While the veteran’s GAF score is not itself determinative of the most appropriate disability rating, the Board must consider it when assigning the appropriate disability rating for the veteran. VAOPGCPREC 10-95 (1995), 60 Fed. Reg. 43186 (1995). A GAF score of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61 to 70 is defined as mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful relationships. Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). The Veteran was afforded a VA examination in November 2012. The examiner found that the Veteran’s psychiatric condition did not impair his ability to engage in physical and sedentary forms of employment. Additionally, the examiner assigned a GAF score of 55, indicating mild to moderate impairment in social and industrial functioning. The examiner summarized the Veteran’s impairment as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported that he was married for 22 years but they divorced about 6 years prior to the examination. He was in a dating relationship at the time of the examination. He noted having 2 daughters from his marriage and 2 grandchildren but indicated that his relationship with his daughters was not as good as he would like it to be. He stated that he lived alone and, outside of work, did “pretty much nothing.” He was able to do light household chores but had no hobbies and discontinued going to church. He indicated that he was doing quality control work at a plant where he had worked the previous 6 years. He was prone to becoming physically and verbally aggressive when angry but reported that he had not gotten physically aggressive with anyone in over 5 years. The examiner indicated that the Veteran endorsed a depressed mood, anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, suicidal ideation, and neglect of personal appearance and hygiene related to his PTSD. The Veteran was described as casually dressed and appropriately groomed. He was alert and oriented to person, place, date, and situation. He correctly identified the date and knew where he was. The Veteran described his mood as mediocre and his affect was restricted. He denied auditory hallucinations but occasionally experienced visual hallucinations. There was no overt evidence of psychosis. The Veteran’s speech was appropriate, he maintained good eye contact, and his thought processes were linear and logical. His memory, insight, and judgment were intact and there was no overt evidence of any cognitive deficits. During an April 2014 VA examination, the examiner summarized the Veteran’s impairment as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. At that time, the Veteran reported that his dating relationship had ended but he had “association [of] female friends.” He stated that he tried to go to church if he was not feeling too uptight about being around people. He indicated that though he has been able to refrain from physical altercations for some time now, his anger and irritability still have a deleterious effect on his outside-of-work social relations. He was on extended leave from work (a month) at the time of the examination but stated that he was able to go back to work when he wanted. He said he had periods of low patience with his co-workers but reported that his work evaluations were very good with no disciplinary actions or counseling. The examiner indicated that the Veteran endorsed anxiety and chronic sleep impairment related to his PTSD. The Veteran was described as oriented, casually dressed, and grooming good. He was cooperative and polite and his speech and behaviors were within normal limits. His mood was reported as angry, mad all the time, and irritable. His affect was somewhat constricted with no psychotic symptoms. The Veteran denied suicidal and homicidal ideation. His cognition was intact and his insight and judgment were fair. The Veteran was noted capable of managing his financial affairs. The examiner noted that the Veteran’s responses during the examination were suggestive of exaggeration in reporting symptoms. A May 2014 emergency department note indicates that the Veteran was under observation for suicidal ideation. Treatment records dated in July 2014 indicate that he worked in a local aluminum plant where he had worked for the previous 7 years. He said he had associates at work and occasionally dated, but considered himself to have no friends. During a September 2014 VA examination, the examiner summarized the Veteran’s impairment as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medications. The Veteran reported that he lived alone and his daughters lived nearby. He visited his daughters once monthly and talked with them by telephone occasionally. He denied any current dating relationships and friendships. Although he previously attended church, he no longer went due to mood swings and anger. The Veteran stated that he called his mother once a month and visited her once a month. He talked with his brother and sister by telephone “every once in a while.” He reported that he was currently working as an inspector of automotive parts where he had been for the previous 7 years. He noted that his anger had interfered with his performance and he thought he was going to be fired. He said he was told to take a medical leave of absence for mental health treatment. The examiner indicated that the Veteran endorsed depressed mood, anxiety, and chronic sleep impairment related to his PTSD. The Veteran was described as alert and fully oriented. His concentration was good throughout the interview and his motor behavior was within normal limits. His speech was also within normal limits and his thought processes were logical and coherent. No delusional material or perceptual abnormalities were elicited. The Veteran denied suicidal and homicidal ideation. His mood was depressed with a depressed affect and his insight and judgment were good. The Veteran was noted capable of managing his financial affairs. A psychiatry note dated in July 2015 indicates that the Veteran reported a paranoid feeling most of the time that made it hard to focus. He said he had a lot of depression with hopeless and helpless feelings. On observation, the Veteran’s hygiene and grooming were appropriate. He was attentive throughout the interview and there was no psychomotor retardation or agitation noted. His attitude was cooperative and friendly. He was alert and oriented to person, place, and time and was aware of his surroundings. His mood was depressed, irritable, and anxious and his affect was constricted. The Veteran’s speech was of normal rate, volume, and quality. The Veteran denied auditory, visual, tactile, and olfactory hallucinations, except images, sounds, and swells of the war. His thought process was logical and goal directed and he denied suicidal and homicidal ideation. A GAF score of 40 was assigned. During VA treatment in January 2016, the Veteran’s hygiene and grooming were appropriate and he was attentive throughout the interview. His attitude was cooperative and friendly. The Veteran was alert and oriented to person, place, and time and he was aware of his surroundings. His mood was noted to be depressed, irritable, and anxious with a constricted affect. He denied auditory, visual, tactile, and olfactory hallucinations, except images, sounds, and swells of the war. He was noted to be hypervigilant and have paranoia feelings but his memory, attention, and concentration were fair and his insight and judgment were intact. Treatment records throughout the appeal period reflect that GAF scores of 35 to 40 were assigned. A February 2016 Separation Notice indicates that the Veteran was discharged from his position for violating the workplace violence policy. The preponderance of the evidence does not support total occupational and social impairment due to PTSD prior to October 6, 2016. While the Veteran had limited social interaction and tended to isolate, he maintained a relationship with his daughters and mother. He also reported occasionally attending church, dating, and maintaining a job through February 2016. While the Board recognizes that the Veteran was terminated due to violence, he previously indicated that he received good reviews and had associates at work. Additionally, while GAF scores of 35 and 40 reflect serious symptomatology, he was not shows to be a persistent danger to himself or others. In addition, when looking to the 100 percent rating criteria, the record does not support a manifestation of gross impairment in thought processes or communication, delusions or hallucinations, grossly inappropriate behavior, inability to maintain activities of daily living, disorientation to time or place, or memory loss of close relatives or own name. Rather, his thought processes were regularly noted to be logical and he was described as oriented to person, time, and place. While the Veteran points to specific instances of hallucinations or inability to recall the date, his overall disability picture is consistent with occupational and social impairment with deficiencies in most areas. The Board recognizes the list of symptoms under the rating criteria are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Here, the Board finds the severity, frequency, and duration of the symptoms reported by the Veteran during this time period most closely represent the symptoms listed in the criteria for a 70 percent rating. Accordingly, a rating in excess of 70 percent for PTSD for the period prior to October 6, 2016 is denied. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims (Court) set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran’s disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran’s disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Director of Compensation Service to determine whether, to accord justice, a veteran’s disability picture requires the assignment of an extraschedular rating. The evidence of record does not reflect that the Veteran’s disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the Veteran’s PTSD outside the usual rating criteria. The rating criteria for the Veteran’s currently assigned 70 percent disability rating specifically contemplate his symptoms, including depression, isolation, and difficulty adapting to stressful circumstances. Moreover, the Board must consider any additional psychiatric symptoms that the Veteran exhibits, even if they are not specifically identified in the rating criteria. See Mauerhan, supra. Thus, the Board finds that the Veteran’s disability picture is adequately contemplated by the rating schedule. As the threshold issue under Thun is not met, any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. Finally, the Veteran has submitted evidence of PTSD and made a claim for the highest rating possible, even indicating that he is unable to work due to his PTSD symptomatology. However, as a total disability rating based on individual unemployability due to service-connected disabilities has already been granted, the issue will not be addressed herein. Rice v. Shinseki, 22 Vet. App. 447 (2009). REASONS FOR REMAND 1. Entitlement to service connection for joint pains, osteitis pubis, left ankle arthritis, and calcaneal spurs, to include as due to an undiagnosed illness or anthrax vaccinations is remanded. During a November 2011 VA Gulf War examination, the examiner indicated that the orthopedic examination better explained the Veteran’s joint problems. Unfortunately, the orthopedic examination is not associated with the claims file. The VA treatment records reference imaging studies from that examination, but the records are not found. As these imaging studies are pertinent to the claim on appeal, as they could show a diagnosed condition (such as arthritis), the examination report should be obtained. Additionally, as noted above, the Veteran provided a private opinion in February 2016 indicating that the Veteran’s joint pains, rhinitis, and memory problems are symptoms of an undiagnosed illness. However, as the private physician did not examine the Veteran, or have access to current imaging studies of the Veteran’s joints, this opinion is of limited probative value. The Veteran should be afforded an additional VA examination to determine the nature and etiology of any claimed joint pains. The matter is REMANDED for the following action: 1. After obtaining any necessary releases, obtain any outstanding VA or private treatment records relevant to the Veteran’s claim. 2. Then, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of any condition manifested by joint pain, osteitis pubis, left ankle arthritis, or calcaneal spurs. After completing all indicated tests and studies, the examiner is to answer the following questions: (a.) Provide a diagnosis for any joint pains, osteitis pubis, left ankle arthritis, and calcaneal spurs that have existed during the pendency of the claim (since August 2012). Please identify the likely etiology of each diagnosed condition. Specifically, respond to the following question: for each condition diagnosed, is it at least as likely as not (a 50 percent or greater probability) that the condition is related to the Veteran’s active service, to include the May 1990 left ankle sprain or an in-service anthrax vaccination? (b.) If the Veteran has other manifestations that are not attributable to a known clinical diagnosis, then provide the following opinion: Does he have objective indications, as established by history, physical examination, and laboratory tests, of an undiagnosed illness or a medically unexplained chronic multi-symptom illness, that has existed for 6 months or more or exhibited intermittent episodes of improvement and worsening over a 6-month period? The examiner should specifically discuss the February 2016 private opinion referencing the Veteran’s skin condition, sleep problems, rhinitis, and joint pain. A medically unexplained chronic multi-symptom illness is defined as a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. The examiner must fully explain the rationale for all opinions, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Lindsey Connor