Citation Nr: 1418383 Decision Date: 04/24/14 Archive Date: 05/02/14 DOCKET NO. 11-14 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 70 percent from November 23, 2009, to March 16, 2010, and 50 percent therefrom. 2. Entitlement to an initial rating for irritable bowel syndrome (IBS) with associated gastro esophageal reflux disease (GERD) in excess of 30 percent. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2002 to October 2006 and from June 2008 to November 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The case was subsequently transferred to the RO in Newark, New Jersey, which retains jurisdiction. The Veteran testified before the undersigned in a hearing at the RO in September 2011. The hearing transcript has been review prior to this decision. FINDINGS OF FACT 1. From November 23, 2009 to March 16, 2010, the Veteran had severe symptoms that interfered with his ability to work and his social relationships. 2. From March 16, 2010, the Veteran had improved symptoms with less treatment, more social behavior, and steady employment. 3. The Veteran has diarrhea, constipation, and abdominal pain associated with his IBS, and heartburn, acid reflux, and regurgitation associated with his GERD. However, he does not have constant abdominal distress, material weight loss, pyrosis, dysphagia, or melena with moderate anemia. 4. Frequent bowel disturbance is demonstrated. CONCLUSIONS OF LAW 1. The criteria for a rating for PTSD in excess of 70 percent from November 23, 2009 to March 16, 2010 and 50 percent thereafter have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.130, Diagnostic Code 9411 (2013). 2. The criteria for a rating in excess of 30 percent for GERD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Code7346 (2013). 3. The criteria for a separate initial rating of 10 percent for IBS have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Code 7319 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In September 2009, the RO provided the Veteran with notice of the claims process and his rights as a claimant, which satisfied the requirements of the VCAA. The notice was provided prior to adjudication of his claims and no additional notice is required. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. VA provided examinations for the Veteran's PTSD, IBS, and GERD in March 2010. There is no assertion or indication that these examinations were inadequate. Rather, they addressed the pertinent rating criteria. The Board has carefully reviewed the record and determines there is no available, pertinent outstanding evidence. In October 2013, the Board previously considered this matter and remanded for additional examinations. The Agency of Original Jurisdiction (AOJ) scheduled the Veteran for VA examinations and sent him notice; however the Veteran failed to appear for the examinations. Subsequent mail sent to his address was returned to VA. The address on the examination notice is the same as that the Veteran supplied to the VA, and he has not provided information of a change of address. VA may rely on the 'last known address' shown of record, and the burden is on a claimant to keep VA apprised of his or her whereabouts. Thompson v. Brown, 8 Vet. App. 169, 175 (1995). The actions of the AOJ were in substantial compliance with the remand directives and further remand is not necessary. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that VA employees have two duties to claimants during hearings: to fully explain the issues and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103(c)(2). At the September 2011 hearing, the undersigned identified the issues and sought evidence concerning the Veteran's PTSD, IBS, and GERD symptoms and treatment to determine whether all relevant records had been obtained. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. As VA satisfied its duties to notify and assist the Veteran, he will not be prejudiced as a result of the Board's adjudication of his claims. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §3.159. II. Rating Analysis 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). A. PTSD The Veteran has been assigned 70 percent disability for PTSD from November 23, 2009 to March 16, 2010 and 50 percent disability for PTSD from March 16, 2010. The Board notes that the Veteran believed the 50 percent disability assignment for the period after March 16, 2010 was a rating reduction. See Board Hearing September 2011. However, review of the June 2010 rating decision shows that this was not a reduction and instead an initial assignment of staged ratings for PTSD. Therefore, there will be no discussion of reduction in disability. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Under the General Rating Formula, the criteria for 50 percent rating are: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of short and long-term memory; impaired judgment, impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. The criteria for 70 percent rating are: 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; obsessive rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. The criteria for 100 percent rating are: 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. From November 23, 2009, to March 16, 2010 the Veteran's PTSD disability most closely approximated that of a 70 percent rating; it was not totally disabling. See 38 C.F.R. § 4.130, DC 9411. During this time period the Veteran was returning from active duty and experiencing severe symptoms, including some suicidal ideations, but no plans, anxiety, depression, insomnia, nightmares, and flashbacks. See VA Treatment; Service Examination March 2009. He experienced irritability and often lashed out in anger. His anger affected his social relationships such as those with his (now former) wife and father. See VA Treatment. In the March 2009 service examination, the examiner noted that the Veteran had marked impairment with his military duties and his commander reported that his symptoms frequently interfered with workplace interactions. These symptoms are indicative of occupational and social impairment, with deficiencies in most areas, including work and family relationships. However, the Veteran's symptoms did not rise to the level of total occupational and social impairment during this time period. Indeed, he was able to maintain jobs and was also a student, although he had difficulties as addressed above. He lived with his parents and interacted with his sister. See VA Treatment November 2009. The Veteran was accompanied by his sister and mother for medical treatment and reported having a supportive family environment. See VA Treatment October 2009-November 2009. He worked at a military training facility and studied accounting. See VA Treatment; VA Examination March 9, 2010. Overall, he had difficulties but was able to function at a level above total disability; therefore a 100 percent rating is not appropriate for the period in question. As of March 16, 2010, the Veteran's PTSD disability picture is most commensurate to a 50 percent rating. See 38 C.F.R. § 4.130, DC 9411. The Veteran's symptoms impair his occupational and social life, resulting in reduced reliability and productivity. During the March 16, 2010 VA examination, the Veteran reported depressed mood and anxiety, poor concentration, sleep problems, anger and fighting. He also noted suicidal thoughts, but no plan. The Veteran reported flashbacks or hallucinations when driving in foggy conditions related to an accident in service where he was driving in fog. He reported being a full-time student and then working in home and lawn maintenance. See VA Examination March 2010, Board Hearing September 2011. He reported being fired from a job because of his anger at not being able to attend medical appointments. See Board Hearing. The Veteran stated that he fought with his father and siblings but had a decent relationship with his youngest sister. See id. The examiner concluded that the Veteran had occasional decrease in efficiency or intermittent periods of inability to perform certain tasks, but generally satisfactory functioning. The Veteran's symptoms over the period in question do not cause impairment with deficiencies in most areas. As discussed, the Veteran has been almost always employed or a student. During the March 2010 VA examination, he reported having a lot of friends. The examiner recorded fair judgment and insight. See VA Examination March 2010. The examiner assigned a Global Assessment of Functioning (GAF) score of 65, meaning some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well. See id; DSM-IV. VA treatment records from March 2010 to August 2013 do not show treatment for mental health problems. These records show consistent negative screenings for PTSD and depression. See VA Treatment August 2013, October 2012, June 2010. The Veteran appears to have improved social functioning and anxiety, as he went on a trip to Atlantic City with friends and his girlfriend. See VA Treatment August 2011. While the fog-related hallucinations and fighting may be indicative of a 70 percent rating, the Veteran's overall functioning is generally satisfactory. See VA Examination March 2010. Based on his ability to maintain employment, lack of treatment, and improved social behaviors, the Veteran's symptoms do not rise to the level of 70 percent or 100 percent disability after March 16, 2010. B. IBS with associated GERD The Veteran has been assigned a 30 percent disability for his IBS with associated GERD stomach conditions. This disability has been rated under 38 C.F.R. § 4.114, Diagnostic Code 7319 for irritable colon syndrome and Diagnostic Code 7346 for hernia hiatal, which is often used for gastro esophageal disabilities. Diagnostic Code 7319 allows for a 10 percent rating for moderate symptoms with frequent episodes of bowel disturbance with abdominal distress and a 30 percent rating for severe symptoms of diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. 38 C.F.R. § 4.114, DC 7319. Diagnostic Code 7346 allows for a 30 percent rating for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 38 C.F.R. § 4.114, DC 7346. A 10 percent rating is applicable to conditions with two or more of the symptoms listed in the 30 percent criteria of less severity. Id. Finally, the maximum, 60 percent disability requires pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of serious impairment of health. Id. The Veteran has reported diarrhea, constipation, and abdominal stress, as well as episodes of fecal incontinence. See Board Hearing September 2011. Regarding his GERD symptoms he reported heartburn, acid reflux, and vomiting. See id; see also VA Examination March 2010. He noted that he altered his diet to try to improve his symptoms. See Board Hearing. At the outset, the Board notes that the Veteran's evaluation under Diagnostic Code 7346 is deemed to contemplate all reflux symptoms, such as epigastric distress and vomiting. Such evaluation does not contemplate bowel disturbance. The Veteran was credibly testified as to soiling himself frequently as a result of his service-connected disability. As such, a separate 10 percent evaluation under Diagnostic Code 7319, for frequent bowel disturbance, is warranted here. A higher evaluation under that code section is not warranted, because, as discussed in more detail below, the record fails to demonstrate constant abdominal distress, and in any event such distress is already contemplated by his evaluation under Diagnostic Code 7346 and thus to consider this twice would constitute impermissible pyramiding. Additionally, there is no evidence of diarrhea or alternating diarrhea and constipation, such as to enable a finding that the disability picture is most approximated by a 30 percent evaluation under Diagnostic Code 7319. In sum, the component of the Veteran's disability picture characterized by bowel disturbance warrants an award of a separate 10 percent evaluation throughout the rating period on appeal. The remainder of the analysis will focus on the Veteran's GERD symptoms under Diagnostic Code 7346. Upon review of the record, the Veteran's GERD disability does not merit a higher rating. Although the Veteran reported constant abdominal distress during the Board hearing, he denied any abdominal distress in the March 2010 VA examination. The Veteran also denied nausea and vomiting during the March 2010 examination and reported having diarrhea about once a week. The examiner found that the IBS and GERD disabilities had no related functional impairment. VA Examination March 2010. Further, VA treatment from March 2010 to August 2013 shows no treatment for IBS or GERD and reflects consistent denials of diarrhea, constipation, abdominal pain, and vomiting. See VA Treatment October 2012, June 2011. The evidence also does not show material weight loss and hematemesis or melena with moderate anemia or other symptoms productive of server impairment for a 60 percent disability. The Veteran has not had material weight loss as defined as a divergence of more than 20 percent of the individual's body weight from average, or baseline, weight prior to the disease. See 38 C.F.R. § 4.112. The Veteran's weight at separation from active duty was around 240 pounds. See Service Examination March 2009. Throughout the course of the period on appeal, the Veteran was recorded with weights of 253, 250.6, 251, and 235 pounds. See VA Treatment December 2009, January 2010, March 2010, April 2011, August 2011. Thus, his reported weight fluctuated by about 15 pounds. See Board Hearing September 2011. These measurements and reports do not show a change of 20 percent or more of the Veteran's body weight. There is also no evidence of hematemesis or melena with moderate anemia or severe impairment to health. See VA Treatment, VA Examination March 2010. In reaching this determination, the Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran could not receive a higher rating under an analogous rating code. See 38 C.F.R. § 4.114. There is no evidence of other gastrointestinal related conditions or symptoms. See VA Treatment, VA Examination March 2010. Based on the evidence, the Veteran's GERD disability does not merit a rating in excess of 30 percent disability. See 38 C.F.R. § 4.112. Again, a separate 10 percent initial evaluation is awarded for his bowel disturbance. C. Extra-schedular Considerations The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b) (1). However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Rather, the manifestations of the Veteran's PTSD, IBS, and GERD are fully contemplated by the schedular rating criteria. Specifically, the rating criteria and case law for evaluating mental health disorders is intentionally broad to take into account a variety of symptoms and the entire effect of the disability on the Veteran's life. Additionally, his symptoms of diarrhea, vomiting, heartburn, constipation, and abdominal pain are addressed by the rating schedule and this decision. Accordingly, referral for consideration of an extra-schedular rating is not necessary. See Thun, 22 Vet. App. at 115-16. In summary, the preponderance of the evidence is against a higher rating than those assigned for PTSD and IBS with associated GERD disabilities. See 38 C.F.R. §§ 4.114, 4.130. Therefore, the benefit of the doubt doctrine is inapplicable and the claims must be denied. See 38 C.F.R. § 4.3. ORDER An initial rating for PTSD in excess of 70 percent from November 23, 2009, to March 16, 2010, and in excess of 50 percent thereafter, is denied. An initial separate 10 percent rating for bowel disturbance (IBS) is granted. An initial rating in excess of 30 percent for GERD is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs