Citation Nr: 1751098 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 14-23 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with depression. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran served on active duty from September 2000 to September 2004 and from August 2008 to September 2009. This case initially came before the Board of Veterans' Appeals (Board) on appeal from January 2011and September 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In March 2016, the Board remanded the case to schedule the Veteran for a videoconference hearing. In June 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In January 2017, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. During the pendency of the appeal, in a May 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for left and right elbow strain. The Board finds that the grant of service connection constitutes a full award of the benefit sought on appeal with respect to those issues. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board indicates that the Veteran did not initiate an appeal with the AOJ's initial rating or effective date. Thus, those matters are not in appellate status. Grantham, 114 F.3d 1156, 1158 (Fed.Cir.1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). As such, these issues no longer remain on appeal, and no further consideration is necessary. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran has not been shown to have a low back disorder that manifested in service or within one year thereafter or that is otherwise causally or etiologically related to his military service. 2. The Veteran's PTSD is not productive of total occupational and social impairment. CONCLUSIONS OF LAW 1. A lumbar spine disorder was not incurred in active service, nor may it be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for an initial evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a lumbar spine disorder. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a lumbar spine disorder. In fact, his July 2004 separation examination found his spine to be normal, and in an associated July 2004 report of medical history, the Veteran specifically denied ever having had any recurrent back pain or any back pain. In a September 2008 pre-deployment health assessment and in an August 2009 post-deployment health assessment, the Veteran also reported that he had not been to sick call, placed on quarters, or given light or limited duty, and he was not bothered by back pain. Moreover, there is no objective x-ray evidence of arthritis within one year after his separation from service. In fact, August 2009 private x-rays of the thoracic and lumbar spine were negative. The Board does acknowledge the Veteran's assertion that he injured his back carrying 80 to 100 pounds per day while wearing 50 pounds of body armor in Iraq and that he has continued to have problems since that time. See, e.g., August 2009 private treatment note, April 2015 private treatment note, June 2016 hearing transcript. Lay persons are competent to report observable symptoms, such as problems since the Veteran's military service. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he or had had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, although the Veteran is competent to report an injury in service and symptoms since that time, the Board finds that such statements are not credible. The allegations are inconsistent with the contemporaneous record. As discussed above, the Veteran's spine was found to be normal at his August 2009 post-deployment health assessment. Thus, there was actually affirmative medical evidence showing that he did not have a low back disorder at the time of his separation from service (rather than a mere absence of treatment or documentation). Moreover, the Veteran's own statements have been inconsistent regarding the onset and continuity of his back disorder. In this regard, a February 2010 VA general medical examination did not note any complaints related to the low back. Further, an April 2015 private medical record indicated that the Veteran stated that his low back pain had improved after service. He also reported that he practiced jiu jitsu four days per week. In a subsequent April 2015 private treatment note, the Veteran reported that he had low back pain for one week, which was "very unusual for him." He stated that he exercised for hours every day of the week and that he competed in international jiu jitsu tournaments. The physician believed that he had sustained a strain at that time. For these reasons, the Board finds the reports of onset and continuity of symptomatology to be not reliable or credible. Therefore, the Board concludes that the weight of the competent, credible, and probative evidence shows that a low back disorder did not manifest in service or within close proximity thereto. In addition to the lack of evidence showing that the claimed disorder manifested during active duty service or within close proximity thereto, the evidence of record does not link any current diagnosis to the Veteran's military service. There is some indication that the Veteran may have intercurrent causes. For example, VA and private treatment records indicate that the Veteran was involved in a motor vehicle accident in September 2016. VA treatment notes dated in October 2016 also showed that the Veteran had low back pain and a fractured sacrum due to the accident. The February 2017 VA examiner opined that the Veteran's low back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so doing, he noted the Veteran's report that his low back pain began while he was serving in Iraq in 2009. The examiner also noted that private x-rays of the thoracic and lumbar spine taken at that time were negative. The examiner stated that it was apparent that the Veteran did have some back pain during service; however, there was no evidence of chronicity of this condition. He noted that an April 2015 private treatment note clearly noted that the Veteran had not had any episodes of back pain since service. He also indicated that there were no complaints of back pain during the February 2010 VA general medical examination. The examiner related that the Veteran had a post-service motor vehicle accident that affected the lumbar spine that was severe enough to necessitate a referral to a specialist. The examiner stated that his examination of the Veteran's lumbar spine was normal, and his diagnosis of lumbar spine strain was based on history and not objective findings. He concluded that he was unable to link the Veteran's current low back complaints to service, as there was no evidence of chronicity of the condition and no nexus. Additionally, he noted that the Veteran's post-service injury superseded the back complaints that the Veteran had during service. Therefore, it was his opinion that the Veteran's current low back complaints were less likely than not caused by or a result of his service. The Board affords substantial probative weight to the opinion of the February 2017 VA examiner. The opinion is based on an accurate review of the claims file, fully addressed the etiology of the Veteran's back disorder, and considered the medical and lay evidence of record. The opinion is also supported by clear and adequate rationale. See Nieves-Rodriguez, 22 Vet. App. 295 (2008). There is no medical opinion otherwise relating the Veteran's current back disorder to his military service, including any injury therein. Again, the Board acknowledges the lay assertions that the Veteran's current low back disorder is related to his period of active service. However, even assuming the Veteran is competent to opine on this matter, the Board finds that the specific opinion of the VA examiner is of greater probative weight than the more general lay assertions in this regard. The medical provider has training, knowledge, and expertise on which he relied to form the opinion, relied on a complete and accurate factual premise, and provided a rationale for the conclusion reached. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a low back disorder. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a back disorder is not warranted. Increased Rating 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 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.A. § 1155; 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 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). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. In this case, as explained below, a uniform evaluation is warranted. The Veteran's PTSD is currently assigned a 70 percent disability evaluation pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when the psychiatric disorder results in 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. The use of the term "such as" in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." The Board notes that the regulations were recently revised to incorporate the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V) rather than the Fourth Edition (DSM-IV). However, these provisions only apply to cases received by or pending before the AOJ on or after August 4, 2014. The change does not apply to cases certified to the Board prior to that date. In this case, the Veteran's claim was certified to the Board prior to August 4, 2014; therefore, the regulations pertaining to the DSM-IV are for application. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the DSM-IV, GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran does not meet the criteria for a 100 percent evaluation for his PTSD. As noted above, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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); and inability to establish and maintain effective relationships. A 100 percent rating is warranted when the psychiatric disorder results in 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. The evidence of record does not show that the Veteran has 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. The Board emphasizes that a 100 percent disability evaluation requires both total social and occupational impairment. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). In this regard, the Board acknowledges the Veteran's lay statements regarding the severity of his symptoms as well as the evidence showing that he has been unable to work due to his PTSD. In fact, the Veteran is in receipt of a total disability rating based upon individual unemployability due to his service-connected disabilities (TDIU) because he is unable to secure or follow a substantially gainful occupation. However, there is also evidence that the Veteran was self-employed as an Uber driver during the appeal period from March 2017 to April 2017. See April 2017 VA 21-4140-1 Employment Questionnaire. Regardless, throughout the appeal period, the Veteran has not been shown to have total social impairment. In a November 2010 private treatment note, the Veteran indicated that he was one of eight children and that he was very close with his family. During a December 2010 VA PTSD examination, the Veteran described anger outbursts with his coworkers and arguments with his wife; however, he also indicated that he remained married, had one close friend, and got along with his family members and his wife's family members. In a January 2011 private treatment note, the Veteran stated that he discussed his PTSD symptoms with his dad, who also had PTSD after his military service. The Veteran's treating psychiatrist also noted that the Veteran and his wife had "[n]otable marital discord." In April 2011 private treatment notes, the Veteran reported that he went on vacation with his wife, her sister and husband, and her best friends and husband. He also indicated that he felt that he was "toxic" and that he was arguing with almost everyone in his life. Private psychiatric treatment notes showed that the Veteran was married during the appeal, despite frequent arguments and couple's counseling. See, e.g. October 2011 correspondence from the Veteran's private treating psychiatrist. In a June 2012 VA mental health treatment note, the Veteran stated that he had one close friend that he to whom he felt that he could talk. In a July 2013 private emergency department behavioral health assessment, the Veteran indicated that he was divorced for the second time in the past one and a half years. He stated that his sister, niece, and nephew recently moved in with him and that he became their source of financial support and caregiving. He also related that he got along with his eight brothers and sisters. In a November 2015 VA mental health treatment note, the Veteran reported that he stopped all of his psychiatric medications approximately one and a half years ago after he met his current wife and that his symptoms improved and he remained "relatively well" until early 2015 when he began to experience stress at work. During a January 2016 VA examination, the Veteran reported that he had been married to his wife for five months and that they dated for two years before they were married. He indicated that he divorced his second wife in 2011 after she left him. He also stated that his PTSD symptoms were less of a problem in his current marriage than in his previous marriage. The Veteran indicated that he did not socialize on his own, but he and his wife competed in jiu jitsu together. He also indicated that he maintained one good friendship and saw his friend once per month. During the June 2016 hearing, the Veteran testified that he had no friends and that the only person that he socialized with was his wife. He also indicated that he had an "okay" relationship with his family despite not speaking to his siblings. He reported that he spoke on the phone with his mother approximately once every two weeks and his father once per month. Although there is evidence showing some degree of social impairment, the evidence also shows that the Veteran has maintained some relationships throughout the appeal. Thus, it cannot be said that the Veteran has had total social impairment. The Board acknowledges that a GAF score of 55 was assigned during the December 2010 VA examination. A GAF score between 51 and 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning. See 38 C.F.R. §§ 4.125, 4.130, DSM-IV. In this case, the GAF score assigned is but one factor for consideration in a rating. Overall, the GAF score assigned is generally consistent with the serious symptomatology contemplated in the 70 percent evaluation and support such an evaluation. Nevertheless, while considering the GAF score of record as part of the overall social and occupational functioning picture, the Board finds the narratives contained in the lay statements, treatment records, and examination reports to be the most probative evidence of the Veteran's psychological symptomatology. After considering the evidence of record, the Board finds that the Veteran's symptoms more closely approximate the criteria for the 70 percent disability rating. Overall, the Veteran has not demonstrated a level of impairment consistent with the criteria for a total evaluation. Mauerhan, supra, Vazquez-Claudio, supra. As discussed above, the Veteran does not have both total social and total occupational impairment as required to warrant a 100 percent rating. Mauerhan, supra, Vazquez-Claudio, supra. Thus, the criteria for the next higher rating of 100 percent have not been met or approximated during this period on appeal. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Accordingly, the Board concludes that the weight of the evidence is against a rating in excess of 70 percent for PTSD. As such, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. at 53. ORDER Service connection for a low back disorder is denied. An initial evaluation in excess of 70 percent for PTSD is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs