Citation Nr: 1751252 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-34 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T.L. Bernal, Associate Counsel INTRODUCTION The Veteran had active Army service from April 2004 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2011 and a January 2012 rating decision by the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburgh, Florida. The Veteran has not contended, and the evidence does not otherwise indicate, that his service-connected disabilities preclude him from securing or following a substantially gainful occupation. Consequently, the matter of entitlement to a total disability rating based on individual unemployability (TDIU) is not raised by the Veteran or the evidence of record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Additionally, the Board has considered whether the Veteran's service-connected disability warrants entitlement to special monthly compensation (SMC); however, the Board finds that the matter of SMC is not raised by the Veteran or warranted by the evidence of record for any period on appeal. 38 U.S.C. § 1114 (2012); 38 C.F.R. § 3.350 (2017). FINDINGS OF FACT 1. The Veteran's low back disability has been shown to be causally related to his active service. 2. The occupational and social impairment from the Veteran's PTSD more nearly approximates occupational and social impairment with reduced reliability and productivity at the 50 percent rating level, than at the 30 percent rating level, for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria are met for service connection for lumbar degenerative disc disease. 38 U.S.C. § 1101, 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(d) (2017). 2. The criteria for an initial rating of 50 percent for PTSD, but no higher, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.321, 4.1, 4.3, 4.7, 4.40, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. 38 C.F.R. § 3.303(b). Currently, the Veteran is diagnosed with degenerative arthritis of the spine, which is a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). Service treatment records reflect that the Veteran was involved in an improvised explosive device (IED) attack in March 2006 and continuously complained of low back pain from that date until his medical discharge for his back disability in August 2007. Following his separation from service, the Veteran filed his application for service connection for a low back disability in September 2007. The Veteran has presented a credible history of a lumbar spine disorder since service. Additionally, he is competent to report that his low back pain began in service and has continued to the present. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's lumbar spine disability is causally related to his active service. The claim for service connection is granted. 38 C.F.R. §§ 3.102, 3.303. II. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher scheduler rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence on an issue material to a determination, VA resolves reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2017). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). PTSD is rated using the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 30 percent rating is assigned for occupational and social impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions). Id. A 50 percent rating is assigned for 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for 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); and an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. The Veteran asserts that the symptoms of his PTSD are worse than currently rated. At his March 2011 VA examination, the Veteran reported that since service he has experienced a compulsion to drink, sleeplessness, night terrors, and avoidance of loud noises on an almost daily basis. The VA examiner concluded that the Veteran's PTSD was at least as likely as not caused by or a result of the fear of hostile military or terrorist activity. The Veteran reported that he was engaged to be married, but avoided big crowds. At the time the Veteran was not receiving any mental health treatment. During a February 2017 VA examination, the Veteran reported recurrent and intrusive recollections of his stressors. He elaborated that recollections of the reported stressors resulted in intense fear and feelings of helplessness. The Veteran reported that he had been living with his two children, but only part time. He reported that he does engage in occasional leisure activities, including fishing, hunting, and riding four wheelers; all of which are solitary activities. The Veteran reported significant difficulty falling and staying asleep. The Veteran also reported that he started to notice his symptoms when he was working as a Deputy Sheriff, in August 2007. The Veteran reported that he no longer works as a Deputy Sheriff because he "tired of dealing with the people that he had to deal with . . . and started having thoughts that he has never had before." Although, he would not elaborate as to what type of thoughts those were. He reported that he maintains a relationship with one to two friends, his children, and a girlfriend. The Veteran also reported that he avoids large groups. The Veteran has not been noted to have significant impairment in memory and his thoughts have generally been found to be organized. Upon mental status examination, the Veteran appeared neatly dressed and well groomed. His mood was described as depressed and his current affect was tearful at times. There were no delusions or hallucinations observed and he was oriented to person, time and place. The examiner noted that the Veteran's thought processes and content were within normal limits and neither his memory nor judgment was impaired. There were no suicidal or homicidal ideations present. The Board finds that the Veteran is entitled to an initial 50 percent rating for his PTSD. The Veteran's PTSD more nearly approximates occupational and social impairment with reduced reliability and productivity to a moderate degree. Based on the evidence of record, the Board finds that an increased rating of 50 percent, but no higher, is warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The Board acknowledges that the results of the VA examinations, the symptoms described in the VA examination reports, the VA Medical Center mental health treatment records, and the lay statements of record do not indicate that the Veteran has experienced all of the symptoms associated with a 50 percent rating. However, a finding that there is moderate occupational and social impairment with reduced reliability and productivity is sufficient to warrant an initial 50 percent rating even though all the specific symptoms listed for 50 percent are not manifested. Mauerhan, 16 Vet. App. at 436. While the Veteran is impaired somewhat, the Veteran was still able to maintain employment as well as social relationships with both family and friends. Therefore, his symptoms do not warrant an initial rating of 70 percent, as contemplated by the schedular rating guidance. The Veteran has consistently denied any thoughts of self-harm or harm to others. Also, the Veteran is still able to manage his financial affairs and only has minor memory loss for unimportant details. The Veteran has not displayed an inability to maintain his personal hygiene. Therefore, his symptoms do not warrant an initial rating of 100 percent, as contemplated by the schedular rating guidance. All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the [current] rating [assigned herein] for the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Therefore, for the reasons stated above, the Board finds that an increased rating of 50 percent, but no higher, is warranted. See Hart, 21 Vet. App. 505. ORDER Entitlement to service connection for a low back disability is granted. Entitlement to an increased rating of 50 percent for PTSD, but no higher, is granted. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs