LUMBOSACRAL STRAIN

ZI-HENG ZHU · 2022 · Case ID: 22060068

MIXED

Summary

The veteran, who served in the Army from February 2003 to May 2004 and in the Army National Guard, appeals the denial of service connection for left ear hearing loss and the rating for PTSD. The Board granted service connection for lumbosacral strain as secondary to his service-connected right knee patellofemoral syndrome (PFS). The veteran's treating PA and a private orthopedist provided opinions linking his back condition to his knee injury, and the Board found these opinions persuasive, noting the functional impairment caused by the back condition. The Board also granted an increased rating for PTSD to 70 percent, finding that the veteran's symptoms, including frequent panic attacks, paranoia, and occasional hallucinations, most closely approximated the criteria for that rating throughout the appeal period. However, the Board denied service connection for left ear hearing loss, as audiometric evidence did not demonstrate a disability meeting VA standards for the left ear, despite a nexus to service being established for noise exposure. The claim for nonservice-connected pension was dismissed as moot due to the higher combined disability rating awarded. The claim for Total Disability based on Individual Unemployability (TDIU) was remanded for further development, considering the newly granted lumbosacral strain and increased PTSD rating.

Rationale

Present disability of lumbosacral strain with functional impairment; Secondary to service-connected right knee PFS; Persuasive private and treating physician opinions; Benefit of the doubt resolved in veteran's favor

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

15-43 213

Full Decision Text

Citation Nr: 22060068
Decision Date: 10/26/22 Archive Date: 10/26/22

DOCKET NO. 15-43 213
DATE: October 26, 2022

ORDER

Entitlement to service connection for lumbosacral strain is granted.

Entitlement to service connection for left ear hearing loss is denied.

Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted.

Entitlement to nonservice-connected pension is dismissed.

REMANDED

Entitlement to a total disability based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran's lumbosacral strain is a result of his service-connected right knee patellofemoral syndrome (PFS).

2. The Veteran did not have left ear hearing loss for VA purposes at any point during the course of the claim.

3. For the entire appeal period, the Veteran's PTSD manifested in occupational and social impairment with deficiencies in most areas. Total occupational and social impairment has not been shown.

4. The Veteran has been in receipt of a disability rating of 80 percent since October 5, 2010, and 90 percent since December 1, 2014, which provides a greater benefit than nonservice-connected pension.

CONCLUSIONS OF LAW

1. The criteria for service connection for lumbosacral strain, as secondary to service-connected right knee PFS, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.

3. The criteria for an initial rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411.

4. As a greater benefit has been awarded, the claim for nonservice-connected pension benefits is dismissed as moot. 38 U.S.C. §§ 1521, 1523; 38 C.F.R. §§ 3.3, 3.151.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 2003 to May 2004. He had additional service in the Army National Guard, to include various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA).

The case is on appeal from April 2012 and June 2012 rating decisions.

In his November 2015 and July 2017 VA Form 9 Substantive Appeals, the Veteran requested a hearing before the Board. In an October 2018 statement from his representative, the Veteran withdrew the request and it is deemed withdrawn. 38 C.F.R. § 20.704(e).

The case was previously before the Board in February 2019, at which time the claims were remanded for additional development. While the case was in remand status, the Regional Office (RO) granted service connection for cervical spine degenerative disc disease (DDD), left and right arm numbness, right ear hearing loss, and cervicogenic headaches, in February 2022 and April 2022 rating decisions. As the benefit sought was granted in full for those issues, they are no longer on appeal.

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability
See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310.

VA is responsible for determining whether the evidence supports the claims or is in approximate balance, with the veteran prevailing in either event, or whether the evidence is persuasively against the claims, in which case the claims are denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-82 (2021).

1. Service connection for lumbosacral strain.

The Veteran seeks service connection for a back condition. He contends that he fell from a 10-ton truck during active service, injuring his right knee, and possibly his low back. He also asserts that he walks with an altered gait as a result of his injured knee, and his back condition may be a result of the altered gait. See October 2010 Correspondence. The Veteran has also submitted the lay statements of his spouse, sister-in-law, and friend, stating that they observed the Veteran experiencing frequent back problems since his return from deployment to Iraq.

VA treatment records reflect the Veteran seeking treatment for his low back pain. In a July 2004 treatment note, the Veteran stated he fell off a truck in February 2004, onto the running board and banging his right knee. He also stated that "he may have hurt his back" during the event. In September 2007, he sought treatment after hurting his back while moving some trees, and an impression was given of "[l]ow back pain and possible herniated disc." By August 2010, his condition was noted as "chronic back pain since time in Iraq, typically to mid back but can occur along entire spine." An x-ray was taken of his spine in March 2019. "Wear and tear" of the low back was noted, but "without new concerns at this time."

In January 2013, the Veteran submitted a medical opinion completed by his treating physician assistant (PA) at the VA. He stated he reviewed the Veteran's December 1994 enlistment examination that did not list any history of spinal injuries, and the Veteran's July 2004 VA treatment record of the fall from the 10-ton truck with subsequent right knee and back pain, with continued pain since that time. He then opined that it is as least as likely as not that the Veteran's back pain is secondary to his right knee condition, which was injured during service, and pain from both were first reported within the first six months following discharge.

The Veteran submitted another private medical opinion in November 2018, completed by an orthopedist. After review of the Veteran's medical records, the physician provided an opinion that it was at least as likely as not that the Veteran's back complaints were secondary to his right knee problems, as his locomotion occurs through both legs and rotates through the lower back during ambulation. He further attributed pain in the Veteran's back to instability and limping in the right knee due to an unbalanced gait.

He was first afforded a VA examination in November 2021, with a diagnosis listed as lumbosacral strain. The medical history of the condition listed the date of onset in 2003, when the Veteran was climbing onto a tractor-trailer during service when he slipped and fell, injuring his right knee, neck, and mid to low back, with progressive pain since, and current symptoms of aching, sharp, and shooting pain. The examiner stated that the low back condition caused
right knee problems, as his locomotion occurs through both legs and rotates through the lower back during ambulation. He further attributed pain in the Veteran's back to instability and limping in the right knee due to an unbalanced gait.

He was first afforded a VA examination in November 2021, with a diagnosis listed as lumbosacral strain. The medical history of the condition listed the date of onset in 2003, when the Veteran was climbing onto a tractor-trailer during service when he slipped and fell, injuring his right knee, neck, and mid to low back, with progressive pain since, and current symptoms of aching, sharp, and shooting pain. The examiner stated that the low back condition caused a functional impact, when the back starts to stiffen, tighten and "burns," which impacts his ability to stand up, sit down, bend over, and stoop.

New imagining of the spine was obtained in December 2021, with an impression of normal lumbar vertebral bodies and alignment, and no acute bony processes identified. As a result, a medical opinion was provided by the VA examiner in January 2022, stating that a nexus had not been established between the low back condition and service, to include a secondary relationship, as she was unable to confirm a current chronic diagnosis based on the x-rays.

First, the Board finds that the Veteran has a present disability of lumbosacral strain. Although the December 2021 x-ray found "normal" lumbar vertebrae and alignment, the March 2019 imagining reflected wear and tear. This matches the Veteran's reports of low back pain, and the November 2021 VA examination diagnosis of lumbosacral strain. Moreover, even without a clinical diagnosis, pain may constitute a current disability to the extent it results in functional impairment. See Saunders, 886 F.3d at 1361. The VA examiner specifically found functional impairment from the condition in his ability to stand up, sit down, bend over, and stoop, as the back stiffens, tightens and burns.

The Board also finds that the Veteran's lumbosacral strain is a result, or secondary, to his service-connected right knee. The Veteran's treating PA had access to his medical records, and considered the Veteran's reports of continued back pain since injury to the right knee in 2004, when he provided a positive medical nexus between the two conditions. Additionally, the submitted November 2018 opinion of the orthopedist is persuasive. Regardless of whether the orthopedist examined the Veteran in person, he relied on his specialty knowledge and review of the Veteran's medical records since discharge, to render his opinion that the Veteran's low back condition is a result of an altered gait due to his right knee. The opinion is clear and based on the relevant information. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

Moreover, the January 2022 VA opinion only denies a nexus between the low back and right knee due to a "normal" impression of the lumbar vertebrae on the December 2021 x-ray, without consideration of the previously diagnosed lumbosacral strain causing functional impairment. At the very least, the evidence has reached a level of equipoise with respect to the nexus element for this claim.

Further, in January 2011, the VA made a formal finding as to the unavailability of the Veteran's service treatment records (STRs). Although the Board finds that VA has exhausted its duty to assist with regard to procurement of the Veteran's STRs, the Board acknowledges that VA has a heightened duty to consider the "benefit of the doubt" doctrine when such records are missing or destroyed. Cf. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).

In consideration of the totality of the evidence, and when resolving reasonable doubt in the Veteran's favor, the Board finds that he has a current diagnosis of lumbosacral strain that causes functional impairment, and that it is related to his service-connected right knee. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310; Gilbert, 1 Vet. App. at 49. Accordingly, service connection is warranted on a secondary basis for lumbosac
Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).

2. Service connection for left ear hearing loss.

The Veteran seeks service connection for left ear hearing loss, and contends it is a result of noise exposure associated with his military duties.

For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

As noted above, a formal finding has been made that the Veteran's active duty STRs are unavailable. However, the Veteran's December 1994 enlistment audiogram is of record, as well as audiograms in February 2000 and July 2005 as part of his Army National Guard service, all showing normal left ear hearing.

The Veteran's Certificate of Release or Discharge (DD214) indicates that the Veteran's military operational specialty (MOS) was Heavy Construction Equipment Operator.

The Veteran was first afforded a VA examination in connection with his claim in February 2011. The examiner reported the following puretone thresholds for the left ear, in decibels:

500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz

LEFT EAR 15 15 5 5 10

A speech discrimination test revealed a Maryland CNC score of 94 percent for the left ear. The VA examiner opined that his hearing loss and tinnitus were due to or a result of noise exposure associated with the Veteran's MOS of Heavy Construction Equipment Operator. While the Veteran has since been granted service-connection for tinnitus and right ear hearing loss, the measured left ear hearing loss in the February 2011 examination did not reach levels for a disability for VA compensation purposes. 38 C.F.R. § 3.385.

The Veteran underwent a new VA examination in December 2020 as result of the February 2019 Board remand. The findings continued to demonstrate the Veteran does not have hearing loss in the left ear for VA compensation purposes, with a speech discrimination score of 96 percent, and the following puretone measurements:

500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz

LEFT EAR 20 20 15 15 20

Although service connection has been granted for right ear hearing loss, the Board finds that service connection for left ear hearing loss is not warranted. For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service; however, a hearing loss disability by these standards must be currently present. There is no competent medical evidence that the Veteran has a left ear hearing loss disability, as defined by 38 C.F.R. § 3.385, at any point during the appeal period or close in time to the filing of the claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

While the Veteran is competent to report the symptoms he observes, such as decreased hearing, he is not competent to report that he has left ear hearing loss for VA purposes because such a determination requires specific audiometric findings. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, notwithstanding the assertion that he has hearing loss, and a nexus to service has been established, the audiometric evidence reflects that the Veteran does not have left ear hearing loss for VA purposes at this time. See Palczewski v. Nicholson, 21 Vet. App
v. Nicholson, 21 Vet. App. 319, 321 (2007).

In sum, the evidence is persuasively against the claim, particularly the current disability element, and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.385. Therefore, service connection for left ear hearing loss is not warranted.

3. An initial rating in excess of 50 percent for PTSD.

The Veteran is seeking a higher rating for his PTSD, currently rated at 50 percent. The appeal period now before the Board begins on October 5, 2010, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999).

Legal Criteria

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

The Veteran's PTSD has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. A 10 percent evaluation is warranted for PTSD where there is 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 continuous medication.

A 30 percent evaluation is warranted for PTSD where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).

A 50 percent evaluation is warranted for PTSD where 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; and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent evaluation is warranted where there is objective evidence demonstrating 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, 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.

A 100 percent disability evaluation is warranted when there is total occupational and social
is warranted where there is objective evidence demonstrating 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, 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.

A 100 percent disability evaluation 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 and place; and memory loss for names of close relatives, own occupation, or own name.

The symptoms listed in DC 9411 are not intended to 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists).

While Global Assessment of Functioning (GAF) scores may be included in the Veteran's medical records, the Board will not consider GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018) (finding GAF scores to be unreliable indicators of functional impairment not useful in rating psychological disabilities).

Facts and Analysis

The Veteran submitted a December 2010 evaluation conducted by a private psychologist in association with his claim for service connection for PTSD. She assessed the Veteran as having emotional disturbances that cause "significant distress and marked impairment in social, occupational and other important areas of functioning." The Veteran admitted to some suicidal thoughts in the past, but denied ideation at the time of the interview, noting a supportive wife and two daughters, friends, and interests in coaching his girls' sports teams and volunteering at the local fire department. He reported symptoms of frequent confusion, indecision, depression, self-loathing, sleep issues, irritability, excessive jumpiness, avoidance, trouble trusting, flashbacks and nightmares, and anxiety most of the time, with associated physical symptoms of sweating, trembling, racing heart, shortness of breath, and nausea/diarrhea. The psychologist observed that the Veteran was adequately groomed, with no disturbances in logic or thought processes, to include no hallucinations, misinterpretations of reality, normal cognitions, and with intact judgment.

The Veteran was first afforded a VA examination in March 2011 in connection with his original service connection claim. He reported a "good relationship" with his wife of 14 years, two children, his parents, and two sisters. He also stated he had "lots of friends," and enjoyed coaching youth league sports and participated as a volunteer firefighter. He was taking trazadone and paroxetine medication for his mental health conditions, but still reported moderately severe depression daily, and panic attacks 3 to 4 times per week, lasting 10 to 15 minutes. His other symptoms included sleep disturbances with recurrent nightmares, feelings of incapacitation, and avoidance of crowded areas. The Veteran was found to have unremarkable thought processes, normal judgement and insight, normal memory, appropriate affect, and no delusions. The examining psychiatrist determined he did not exhibit total occupational and social impairment; rather, she found his level of functioning to be intermittent periods of inability to perform tasks, with occasional decreases in work efficiency and productivity due to his ongoing PTSD symptoms.

In September 2013, the Veteran underwent a psychological evaluation in an effort to obtain Social Security Administration (SSA) disability benefits. He was found to have anxiety and depression, with associated symptoms of decreased memory, concentration, energy and interest. He still experienced full panic attacks 3 to 4 times per week, with hyperventilation, tachycardia, and chest pain. He experienced continued sleep issues to include nightmares. His mental status examination (MSE) importantly noted he was "moderately deficient" in the areas of judgment and recent memory, and "severely deficient" in concentration. However, he was still volunteering as fire department chief, and enjoyed family dinners, coaching, watching television, time on the computer, and assisted in household chores and maintained personal grooming. While the SSA determined he did not meet the requirements for a disability per their standards, it was determined in a working situation, he should have no interaction with the general public, and only minimal or occasional interaction with coworkers/supervisors.

At his May 2016 VA examination, the Veteran still reported being married with two daughters, and that he enjoyed being an active part of their lives to include sports and band activities. He continued to take medication for his psychiatric condition, with "some days are better than others and some days are worse than others." His symptoms included anxiety, weekly panic attacks, chronic sleep impairment, and disturbances of motivation and mood. The examiner did not find delusions, hallucinations, obsessions, or phobias, with normal thought processes to include good insight, and normal psychomotor behavior and memory. It was opined that he was able to function with only occasional decreases in work efficiency, with intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.

In December 2018, the Veteran submitted a new psychological evaluation conducted by a private psychologist. He determined a diagnosis of PTSD, to include major depression with delusions and hallucinations as part of his PTSD syndrome. Associated symptoms identified included: intrusive memories; sleep disturbance and distressing dreams; dissociation; flashbacks; psychological distress; avoidance; persistent and exaggerated negative beliefs/expectations; distorted cognitions; negative emotional state; marked diminished interest; detachment/estrangement; inability to experience positive emotions; irritable behavior and anger; hypervigilance; startle response; concentration problems; depressed mood; anxiety, suspiciousness; near continuous panic attacks; mild memory loss; flattened affect; difficulty establishing and maintaining effective work or social relationships; difficulty adapting to stressful circumstances; and persistent delusions/hallucinations. Of note, the Veteran reported he started feeling like killing himself around two years prior, with no attempts, and suicidal ideation a couple of times recently.

However, the private examiner also found that he was cooperative, and exhibited concentration, attention span, and psychomotor abilities within normal limits. He denied obsessions or compulsions. Although the Veteran subjectively rated himself at a 7-8 out of 10 on functioning, with "no major problems" in his home life and marriage, the examiner marked that he had total occupational and social impairment.

Following the Board's February 2019 remand, the Veteran had a new VA examination in March 2022. The Veteran still reported a "good marriage," but with its "ups and downs." He stated he avoids interactions with other people and crowded places, and mainly only went to the grocery store. His panic attacks averaged 7 to 8 times per month, and he listed other symptoms of insomnia, nightmares, easily startled, irritability with occasional verbal outbursts and road rage, lack of trust, and difficulty with concentration. He denied hallucinations, mania/hypomania, delusions, or paranoia. The examiner identified additional symptoms of depressed mood, anxiety, weekly panic attacks, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, and in adapting to stressful circumstances. He was observed to have mildly restricted but appropriate affect, grossly intact memory, and normal content of speech without delusions or hallucinations. The examining psychiatrist opined a functioning level of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks, only during periods of significant stress, or that his symptoms are effectively controlled by medication.

The Veteran's VA treatment records have also been closely reviewed to assess the Veteran's level of disability throughout the appeal period in association with his PTSD. The records echoes the findings in his VA examinations. In August 2010, just prior to the
mood, and difficulty in establishing and maintaining effective work and social relationships, and in adapting to stressful circumstances. He was observed to have mildly restricted but appropriate affect, grossly intact memory, and normal content of speech without delusions or hallucinations. The examining psychiatrist opined a functioning level of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks, only during periods of significant stress, or that his symptoms are effectively controlled by medication.

In December 2010, his twice-weekly panic attacks continued, despite prescriptions for the condition. His mood was reported as depressed, helpless, and hopeless, but denied suicidal ideation because "he loves his children." He denied hallucinations, but had continued hypervigilance associated with paranoia. By December 2012, his panic attacks were on a nearly daily basis, after he had stopped certain medications that assisted in controlling them, and he was placed back on the medication. In October 2013, the Veteran denied suicidal ideation or homicidal ideation, but reported visual hallucinations of seeing a "shadow of a person" occasionally. In February, March, and October 2019, the Veteran reported reemerged thoughts of suicidal ideation, as well as auditory hallucinations with thoughts of death, but denied any history of suicide attempts or preparatory behavior. He also acknowledged continued feelings of paranoia.

Based on the foregoing, the Board determines that the evidence in the Veteran's claims file reflects that his PTSD symptoms most closely approximate occupational and social impairment with deficiencies in most areas for the entire appeal period. This warrants a 70 percent rating. 38 C.F.R. § 4.7. The Board also finds that the Veteran's features of service-connected PTSD do not warrant a rating in excess of 70 percent at any point in the appeal period because the frequency, severity, and duration of the symptoms did not result in total occupational and social impairment. This is with consideration of the listed example symptoms in the rating criteria, consideration that the listed examples are not exhaustive, and with a focus on the impairment levels in which they result. See Vazquez-Claudio, 713 F.3d at 117-118; Mauerhan, 16 Vet. App. at 442.

The record reflects that the Veteran experienced suicidal ideation in different periods throughout the appeal period as noted in both VA treatment records and private examinations. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) (noting the importance of suicidal ideation in the criteria for a 70 percent rating). In addition, VA is prohibited from relying on the absence of a current intent at the time of examinations as a factor weighing against the Veteran's claim. Id. The Board also notes the Veteran reported multiple panic attacks per week throughout, consistent paranoia, and symptoms of mild confusion, concentration and memory problems, with occasional auditory or visual hallucinations. This evidence supports the criteria for a 70 percent rating since the effective date of service connection for PTSD.

While an increased rating to 70 percent for the appeal period is warranted, a further increase to 100 for total occupational and social impairment is not warranted. A disability that justifies a 100 percent rating is so severely disabling that some of the examples of symptoms include posing a "persistent" threat of danger to others, "gross impairment in thought processes or communication," not knowing one's own name, the names of close relatives, or one's occupation, and an inability to perform activities of daily living, including maintenance of even minimal personal hygiene due to psychological distress. The Board determines the Veteran has not exhibited such symptoms.

The evidence shows that the Veteran maintains adequate hygiene, has remained married throughout the appeal period, maintained good relationships with his spouse, children, and parents, and described engaging in activities to include coaching sports and volunteering for the local fire department to include holding the position of chief. Further, the record indicates that the Veteran has demonstrated logical thought processes with good judgment and insight throughout the appeal period.

Finally, the VA examiners at most determined that his symptoms approximate occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning
, and an inability to perform activities of daily living, including maintenance of even minimal personal hygiene due to psychological distress. The Board determines the Veteran has not exhibited such symptoms.

Finally, the VA examiners at most determined that his symptoms approximate occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. While the private evaluation submitted by the Veteran in December 2018 reported total occupational and social impairment, this is not supported by the evidence of record, to include the Veteran's own reporting of symptoms at the time of that examination, and throughout his treatment during the appeal period.

In sum, after resolving reasonable doubt in the Veteran's favor, the Board finds his PTSD warrants a 70 percent rating since October 5, 2010, the date service connection went into effect, but not higher. See 38 U.S.C. § 5017(b); 38 C.F.R. §§ 3.102, 4.3. Such determination is based on a holistic analysis of the totality of the medical and lay evidence.

4. Entitlement to a nonservice-connected pension.

The Veteran filed a claim for pension benefits in October 2010. See 38 U.S.C. § 1521; 38 C.F.R. § 3.3. A claim by a veteran for compensation may be considered to be a claim for pension and a claim by a veteran for pension may be considered to be a claim for compensation. 38 C.F.R. § 3.151(a). However, the greater benefit will be awarded, unless the claimant specifically elects the lesser benefit. Id.

The Veteran has been granted a combined disability rating of 80 percent since October 5, 2010, and 90 percent since December 1, 2014. As this is a greater benefit than nonservice-connected pension during the entire appeal period, the issue of entitlement to nonservice-connected pension is moot. See 38 U.S.C. § 1523; 38 C.F.R. § 3.151. Therefore, the claim is dismissed. 38 U.S.C. § 7104; 38 C.F.R. § 20.104.

REASONS FOR REMAND

1. A TDIU.

A total disability rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, with sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. § 4.16.

Based on the above grant in this decision of service connection for lumbosacral strain, and an increased rating for his PTSD, the Board determines that the Veteran's claim for a TDIU requires remand for further development.

The RO should address in the first instance whether the now-service connected lumbosacral strain impacted the Veteran's ability to secure or maintain a substantially gainful occupation. Additionally, the initial rating for his lumbosacral strain is a downstream rating aspect, following implementation of the instant decision. This rating, along with his increased rating for PTSD, has the potential to render his TDIU claim moot for some, or all, of the appeal period.

Thus, the claim for a TDIU is remanded for further development.

The matters are REMANDED for the following action:

After implementation of the of the instant decision, to include assignment of the initial rating for the Veteran's service-connected lumbosacral strain, readjudicate the claim for a TDIU, with consideration of the lumbosacral disability and increased rating to 70 percent for PTSD.

If a TDIU remains denied for any portions of the period on appeal, the Veteran should be furnished with a Supplemental Statement of the Case (SSOC) and be afforded the applicable opportunity to respond before the record is returned to the Board for further review.

Zi-Heng Zhu

Acting Veterans Law Judge

Board of Veterans'
DIU is remanded for further development.

The matters are REMANDED for the following action:

Zi-Heng Zhu

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. Morford, 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.

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