Citation Nr: 1751862 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-02 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for traumatic brain injury (TBI). 2. Entitlement to an initial rating in excess of 30 percent prior to December 14, 2010; to a rating in excess of 50 percent from December 14, 2010, to February 6, 2013; to a rating in excess of 50 percent from April 1, 2013, to December 28, 2015; and, to a rating in excess of 70 percent beginning December 29, 2015, for an posttraumatic stress disorder PTSD. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran had active military service from November 1998 to January 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California and a September 2013 rating decision by the VA RO in St. Paul, Minnesota. Jurisdiction over the case was subsequently transferred to the VA RO in Phoenix, Arizona. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2017 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. The Board notes that during the course of the appeal, the Veteran was assigned a temporary total rating for his PTSD for the period from February 7, 2013, to March 31, 2014. While that does not constitute a complete grant of the benefit sought on appeal, the Board has limited its consideration accordingly. FINDINGS OF FACT 1. The Veteran sustained a TBI during active service. 2. Prior to February 7, 2013, the occupational and social impairment from the Veteran's PTSD more nearly approximated reduced reliability and productivity. 3. From April 1, 2014, to December 28, 2015, the occupational and social impairment from the Veteran's PTSD more nearly approximated deficiencies in most areas. 4. Beginning December 29, 2015, the occupational and social impairment from the Veteran's PTSD has more nearly approximated total. CONCLUSIONS OF LAW 1. A TBI was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for an initial rating of 50 percent, but not higher, for PTSD have been met for the period prior to February 7, 2013. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for a rating of 70 percent, but not higher, for PTSD have been met for the period from April 1, 2014, to December 28, 2015. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 4. The criteria for a rating of 100 percent for PTSD have been met for the period beginning December 29, 2015. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to Service Connection for TBI The Veteran contends that he sustained from a TBI while he was in active service. In particular, the Veteran described two instances of being in close proximity to blast explosions, including one which he was responsible for detonating. The Board notes, at the outset, that the Veteran currently receives treatment through the VA Medical Center for his disabilities, including the residuals of the TBI. At an August 2009 visit to the VA Medical Center, the Veteran complained of headaches which began after exposure to a mortar blast in 2002, and that had continued since then. He denied any loss of consciousness following the incidents, but confirmed experiencing a period of disorientation following the larger of the two blasts. He reported that he experienced headaches on both sides of his head, and that they were aggravated by light and noise. The medical provider, a specialist in polytrauma and brain injuries, opined that the Veteran's symptoms were consistent with at least a mild TBI, although his particular presentation was consistent with a combination of TBI and behavioral health conditions. In September 2013, the Veteran was afforded a VA examination to determine whether he had a current TBI, and, if so, whether that TBI was related to any injury he sustained in-service. The Veteran asserted that the blast exposure in 2002 reported above. After reviewing the Veteran's claims file and medical records, the examiner conducted a physical examination of the Veteran to determine if there were any reflex, sensory, motor, or cognitive disabilities which may have arisen from a TBI. Based on the examination results, the VA examiner noted that the Veteran did not have residuals of a TBI. The examiner opined that the Veteran more likely experienced barotrauma following the explosions than a brain injury. He declined to diagnose the Veteran with a TBI, as he opined that the Veteran's head injury during service did not fulfill the criteria for a TBI. He further noted that the Veteran's cognitive assessment was inconsistent with his overall examination and history. At a TBI screening in February 2013, the Veteran reported being subject to a blast explosion while in service, which knocked him to the ground. He reported subsequent hearing difficulties that lasted approximately an hour, as well as dizziness and visual changes for 30 minutes. The Veteran endorsed on-going symptoms of memory problems, dizziness, and severe headaches; which he stated began shortly after the explosion. The VA licensed social worker noted the Veteran had already been diagnosed with a TBI. The evidence of record indicates that the Veteran has received treatment for the possible residuals of a TBI, including speech and memory difficulties. Here, the Board recognizes that the most recent VA examination concluded that the Veteran had neither a TBI, nor TBI residuals as a result of service, while an earlier examination found based on the Veteran's symptoms that the Veteran's suffered at least a mild TBI in service. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See, Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). In this case, the medical opinions were provided by medical professionals, and are therefore considered to all constitute probative evidence. However, the Board must determine what the most probative evidence is. The Board finds the VA treatment records to be of greater probative value. In this regard, the Board acknowledges that the Veteran was provided a diagnosis of TBI made after thorough examination by a medical professional with significant experience in polytrauma and brain injuries. In addition, such diagnosis was linked by competent medical evidence to the in-service blast exposures, and resulting onset of headaches and dizziness which have continued to the present. In contrast, the Board finds the September 2013 VA examination to be of limited probative value. The examiner failed to note the Veteran's consistent reports of dizziness, confusion, and headaches that had their onset shortly following the earliest blast explosion, and which have continued to the present. The examiner also failed to document the Veteran's history of at least two head traumas, consistently reported by the Veteran as two separate blast explosions, and to account for the likelihood of a TBI following either or both of these incidents, collectively. Therefore, the Board finds that the evidence for and against the claim is at least in equipoise and as such, the benefit of the doubt must be resolved in the Veteran's favor. Accordingly, the Board finds that entitlement to service connection for a TBI, and any residuals of such, is warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an Increased Rating for PTSD The Veteran asserts that the symptoms of his PTSD are worse than currently rated. At a visit in November 2006, the Veteran reported social isolation, anxiety, paranoia, and issues with trust. He expressed thoughts that people were out to get him. He described frequent pent-up anger and violence, which had manifested most commonly in road rage. He reported a good family relationship, but no friends. Upon examination, the Veteran was oriented in all spheres. He was cooperative with the medical provider, but guarded. All other aspects of the examination were normal. At visits in January and March 2007, the Veteran continued to report on-going social isolation, as well as issues with anxiety, trust, and paranoia. He expressed trouble sleeping. He reported a tendency to get angry quickly, leading to one violent outburst. He expressed decreased motivation towards his responsibilities, and increased agitation. At a visit in July 2009, the Veteran reported increased stress regarding his current financial situation. He relayed having more intrusive memories of combat, with disturbances in sleep. He relayed issues with impulse control, for which he reported taking medication. He denied suicidal or homicidal ideations (SI/HI). Upon mental status examination, the Veteran was alert and oriented in all spheres. Appearance and behavior was noted to be cooperative and reasonable, respectively. Mood was reported to be anxious, but consistent with his stress regarding his financial situation. At a September 2009 VA psychiatric examination, the Veteran reported hypervigilance, irritability, and anxiety much of the time. He endorsed experiencing recurrent intrusive thoughts, as well as occasional flashbacks to combat. He indicated that he suffered from insomnia, during episodes of which he felt the need to check the safety of his surroundings. He noted some memory impairment as well as impairment in concentration, and an overall lack of energy. The Veteran reported a "fair" relationship with his family, but otherwise no friends. As such, he described limited social interactions, preferring not to socialize even with other veterans. He denied suicidal or homicidal ideations, as well as auditory or visual hallucinations. The examiner noted the Veteran was employed, but never stayed with the same employer for more than one year, due largely to conflicts with coworkers and supervisors. The Veteran was noted to be capable of handling his own activities of daily living, including housework, cooking, and child care. Upon mental status examination, the Veteran's mood was described as serious and tense, but he was noted to be polite and cooperative with the examiner. Thought content was reported to be anxious, somewhat angry and resentful, but consistent with the circumstances. The VA examiner diagnosed chronic PTSD, with moderate mental symptoms and impairment. At a speech pathology visit in September 2009, the Veteran reported impairment in memory and concentration. He noted a seemingly fair relationship with his girlfriend, but reported that he felt as if he was otherwise without a support system. He reported few hobbies, other than some household gardening. He endorsed episodes of mild confusion, and feeling easily overwhelmed. However, he relayed that he was employed, and expressed an interest in returning to school for engineering. In furtherance of this goal, he had sought assistance in applying to the local community college. Upon examination, the Veteran was observed to be cooperative with appropriate interactions. Affect was observed to be blunted. At a December 2010 VA psychiatric examination, the Veteran continued to report anxiety and irritability. He indicated that his flashbacks of combat, nightmares, and panic attacks were all worse. He endorsed additional impairment with memory and concentration. He reported binge eating, and self-medicating with alcohol and other illicit drugs to calm down. He continued to report getting along with family, but having few or no other social interactions. He continued to manage his own activities of daily living. Upon mental status examination, his mood and affect were tense and dysphoric, and emotional expressions were limited. Thought content appeared anxious and depressed, but no thought disorders were observed. The examiner relayed that the Veteran experienced recurrent, unexpected, and severe panic attacks. All other aspects of the mental status examination were normal. The VA examiner noted a worsening of the Veteran's mental symptoms and impairment since the previous examination. At an October 2012 mental health treatment visit, the Veteran presented with symptoms of anger, emotional volatility, and exacerbation of his PTSD symptoms. He reported previous violent outbursts, and feared hurting others when that happens. Upon examination, he appeared alert, cooperative, and appropriate in manner and behavior. He was cognizant of his emotional impulsivity, which led him to the unscheduled visit. During a visit in May 2013, the Veteran reported frequent intrusive thoughts and flashbacks, which could be triggered by a variety of things. He stated that he actively avoided things that would trigger a physical reaction, including war movies, shooter games, and even conversations with other Veterans about combat memories. He relayed a loss of interest in activities, and occasional trouble connecting emotionally with his children. He reported on-going issues with underlying anger and a tendency towards outbursts. The Veteran's objective questionnaire revealed severe depression. At a subsequent May 2013 treatment visit, the Veteran reported experiencing heightened arousal symptoms, as well as intrusive thoughts of combat. He reported his symptoms contributed to dysfunction in his life. He reported on-going paranoia around crowds, and certain ethnic groups, as well as impairment of sleep. He indicated fluctuating periods of anxiety, including periods of severe anxiety and anger. He acknowledged his emotional difficulties, including expressing sadness, guilt, and fear. However, he was noted to be actively engaged in therapy, from which he seemed to benefit. He continued to deny SI/HI. The medical provider noted the Veteran continued to experience significant depression, although it had improved some with therapy. The evidence of record indicates that the Veteran has been enrolled in the VA caregiver program to provide additional assistance. At a December 2014 program assessment, the Veteran's wife and caregiver reported providing assistance with the Veteran's medication regime and monitoring his pain level. She reported responsibility for planning, shopping, and preparing meals. She reported responsibility for managing the finances, as well as all housekeeping, laundry, and shopping. She reported the Veteran required reminders to complete activities of daily living, including bathing, brushing and shaving. The caregiver reported the Veteran experienced short-term memory problems. She indicated that the Veteran had one recent instance of an outburst in the form of road rage. At a visit in November 2015, the Veteran reported increased depression over the recent loss of his mother, who he considered part of his support system. He noted increased disturbances in mood and impairment in sleep due to the loss of his mother. He reported having some friendships, but not anyone on whom he could rely for support. He reported that he was enrolled in an engineering program, but reported stress over managing both his academics and child care. He denied suicidal or homicidal ideations. The Veteran's caregiver program continued to provide him assistance in managing his medication and finances, as well as performing ordinary household chores, such as cooking and shopping. Upon examination, grooming and hygiene were appropriate. Speech and behavior were normal. Memory and concentration were reported as adequate. The Veteran was afforded a VA psychiatric examination in December 2015. At the examination, the VA examiner indicated the Veteran's symptoms included depression, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. The VA examiner confirmed symptoms of impaired judgment, grossly inappropriate behavior, and intermittent inability to perform activities of daily living. The examiner stated the Veteran presented as disrespectful and arrogant, with low frustration tolerance. The Veteran's thought processes were observed to be logical; however, his speech was often illogical and tangential. The VA examiner concluded that the Veteran experienced chronic, seemingly intractable and maladaptive thinking, feeling and relating to others, along with poor coping skills. He noted marked and chronic mood dysfunction, complicated by chronic substance abuse. The VA examiner diagnosed PTSD, with occupational and social impairment with deficiencies in most areas. As noted, this Veteran attended a hearing by videoconference before a Veterans Law Judge in June 2017. He indicated that overall symptoms were no worse than at the time of the December 2015, but that he had learned to adapt to some of the limitations. He acknowledged significant avoidance habits, in order to reduce intrusive thoughts or memories of combat. The Veteran endorsed on-going symptoms of confusion, concentration, and memory impairment which interfered with his educational goals. Based on the above, the Board finds that the Veteran is entitled to an initial rating of 50 percent rating for his PTSD prior to February 7, 2013. During that period, the Veteran's PTSD more nearly approximated occupational and social impairment with reduced reliability and productivity. The Veteran's family and mental health treatment providers reported that the Veteran had serious issues with memory, concentration, impulse control, and anger which resulted in increased difficulty in establishing and maintaining effective social relationships. The Veteran noted his own difficulty in maintaining effective work relationships, manifested by conflicts with coworkers and supervisors. The Veteran's girlfriend indicated she could be intimidated by him. She also reported that he would occasionally forget to complete even simple requested tasks without repeated reminders. The Veteran additionally endorsed repeated disturbances in mood and motivation, and frequent panic attacks. Therefore, the Board finds that an initial rating of 50 percent is warranted for the period prior to February 7, 2013. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Consideration has been given to assigning a higher rating for the Veteran's PTSD prior to February 7, 2013. However, the evidence of record fails to show that the Veteran's symptoms more nearly approximated occupational and social impairment with deficiencies in most areas for that period. The Veteran did not show excessive difficulty in judgment and thinking, he did not have suicidal or homicidal ideation, he did not exhibit obsessional rituals which interfered with routine activities, and he did not have delusions. There was no indication from the record that the Veteran was unable to maintain his personal hygiene. The record shows some difficulty with work relationships, but the Veteran was able to maintain employment. The Veteran also reported that he maintained social relationships, to include one with his young daughter, and his mother and step-father with both of whom he reported being close. Therefore, the Board finds that an initial rating in excess of 50 percent, prior to February 7, 2013, is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The Board finds that for the period from April 1, 2014, to December 28, 2015, the Veteran was entitled to a 70 percent rating for his PTSD. During that period, the Veteran's PTSD more nearly approximated occupational and social impairment with deficiencies in most areas. The Veteran's family and mental health treatment providers reported that the Veteran had significant issues with memory, mood, concentration, impulse control, and anger which resulted in increased difficulty in establishing and maintaining effective social relationships. The evidence indicates the Veteran required the assistance of a caregiver to assist with personal hygiene and dress. The Veteran additionally endorsed repeated disturbances in mood and motivation, and frequent and severe panic attacks. Therefore, the Board finds that a rating of 70 percent is warranted for the period from April 1, 2014, to December 28, 2015. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Consideration has been given to assigning a higher rating for the Veteran's PTSD for the period from April 1, 2014, to December 28, 2015. However, the evidence of record fails to show that the Veteran's symptoms more nearly approximated total occupational and social impairment for that period. The Veteran did not show gross impairment in thought processes or communication, or other grossly inappropriate behavior. There was no indication from the record that the Veteran was consistently unable to maintain his personal hygiene. There was no evidence that the Veteran exhibited disorientation to time or place, or memory impairment of names or places. The Veteran was enrolled in an educational program, although he noted some difficulties with concentration in the program. Therefore, the Board finds that a rating in excess of 70 percent for the period from April 1, 2014, to December 28, 2015, is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The Board finds that for the period beginning December 29, 2015, the Veteran is entitled to a 100 percent rating for his PTSD. Since that time, the Veteran's PTSD has more nearly approximated total occupational and social impairment. The Veteran's family, mental health treatment providers, and VA examiners reported that the Veteran had significant issues with memory, mood, concentration, impulse control, and anger. The Veteran was observed to exhibit grossly inappropriate behavior towards others, along with maladaptive thinking with poor coping skills. The evidence indicates the Veteran continued to require the assistance of a caregiver to assist with personal hygiene, dress, and other activities of daily living, including food shopping and preparation. The Veteran additionally endorsed a tendency towards violent outbursts when others did not agree with him or were perceived to have wronged him. His caregiver noted his inability to be around large crowds. Therefore, the Board finds that a rating of 100 percent is warranted for the period beginning December 29, 2015. 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 prior to February 7, 2013; all the symptoms associated with a 70 percent rating for the period from April 1, 2014, to December 28, 2015; or, all the symptoms associated with a 100 percent rating beginning December 29, 2015, for PTSD. However, a finding that there is occupational and social impairment with reduced reliability and productivity is sufficient to warrant a 50 percent rating prior to February 7, 2013; a finding of occupational and social impairment with deficiencies in most areas is sufficient to warrant a 70 percent rating for the period from April 1, 2014, to December 28, 2015; and, a finding that there is total occupational and social impairment is sufficient to warrant a 100 percent rating beginning December 29, 2015, even though all the specific symptoms listed for 50 percent, 70 percent, and 100 percent ratings are not manifested. Mauerhan v. Principi, 16 Vet. App. 436 (2002). ORDER Entitlement to service connection for TBI, to include residuals, is granted. Entitlement to an initial rating of 50 percent, but not higher, for PTSD prior to February 7, 2013, is granted. Entitlement to a rating of 70 percent, but not higher, for PTSD for the period from April 1, 2014, to December 28, 2015, is granted. Entitlement to a rating of 100 percent for PTSD beginning December 29, 2015, is granted. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs