Citation Nr: 1751894 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-04 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for traumatic brain injury (TBI) residuals. 2. Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD) rated as 10 percent prior to October 31, 2013 and rated as 50 percent from October 31, 2013. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2004 to February 2005, from December 2005 to March 2006, and from December 2008 to September 2009. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The January 2012 rating decision granted service connection for PTSD, evaluated as a 10 percent disability, effective September 12, 2009 and denied service connection for TBI. In a January 2014 rating decision, the RO increased the PTSD rating to 50 percent, effective October 31, 2013. In November 2016, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. VETERAN'S CONTENTIONS The Veteran seeks service connection for TBI. Specifically, the Veteran contends that he has TBI residuals as a result of an in-service incident in which he landed head first on the pavement after being knocked off of a Humvee by a rocket blast. The Veteran also contends that the currently assigned ratings for his service-connected PTSD do not accurately reflect the severity of his disability. Specifically, the Veteran reports symptoms of anger, irritability, flashbacks, panic attacks, nightmares, sleep disturbance, difficulty concentrating, memory loss, inability to process emotional response, exaggerated startle response, hypervigilance, and suicidal ideation. The Veteran details specific instances in which his PTSD symptoms have impacted his work, family, mood, and thought process. For example, the Veteran stated during the November 2016 Board Hearing that his memory loss contributed to his loss of employment. Also, his symptoms affect his ability to sleep, prevent him from socializing, and impede his ability to complete daily tasks. The Veteran's wife described how anger and inability to process emotional response have impacted his relationships with his children and herself. In addition, the Veteran maintains that his service-connected disabilities preclude him from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. FINDINGS OF FACT 1. A September 2011 VA examiner diagnosed the Veteran with mild TBI. 2. The Veteran's reports of being close to a rocket blast and falling are documented in his July 2009 post-deployment questionnaire. 3. The September 2011 VA examiner opined that the Veteran's TBI had its onset during combat service in Iraq. 4. An August 2011 VA examination report documented that the Veteran reported that the effects of PTSD symptoms on his employment and overall quality of life included mild memory loss, flashbacks, sleep disturbance, difficulty concentrating, flattened affect, hypervigilance, exaggerated startle response, and depressed mood. 5. A June 2014 VA examination report documented that the Veteran reported that the effects of PTSD symptoms on his employment and overall quality of life included irritability, angry outbursts, hypervigilance, exaggerated startle response, difficulty concentrating, sleep disturbance, feeling of detachment or estrangement from others, persistent inability to experience positive emotions, persistent negative emotional state, markedly diminished interest or participation in significant activities, and suicidal ideation. 6. The Veteran credibly and competently reported that his PTSD symptoms negatively impacted his family relations, mood, occupation, and thoughts to include symptoms of angry outbursts, panic attacks, hypervigilance, difficulty concentrating, exaggerated startle response, impaired impulse control, nightmares, impaired family and social functioning, inability to process emotional response, isolation, flashbacks, disturbance of mood, and suicidal ideation. 7. For the period on appeal, the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas. Specifically, the evidence demonstrates deficiencies in mood, work, family relations, judgment, and thinking. 8. The Veteran denied hallucinations, delusions, and homicidal ideation, and the examiners did not observe such. 9. For the period on appeal, the Veteran's PTSD has not been productive of total social and occupational impairment. 10. The probative evidence of record shows that the Veteran is unable to obtain or maintain gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for TBI residuals have been met. 38 U.S.C.S. §§ 1110, 5107 (LexisNexis 2017); 38 C.F.R. § 3.303 (2017). 2. Throughout the period on appeal, the criteria for an initial increased evaluation of 70 percent, but no higher, for PTSD have been met. 38 U.S.C.S. §§ 1155, 5107 (LexisNexis 2017); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 3. The criteria for a TDIU have been met. 38 U.S.C.S. §§ 1155, 5107 (LexisNexis 2017); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS TBI As indicated above, the Board finds that service connection for TBI residuals is warranted. At the outset, the Board notes that the Veteran has been diagnosed with residuals of a TBI. The September 2011 VA examiner diagnosed the Veteran with mild TBI, and the Veteran provided competent testimony as to his current symptoms. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Addressing in-service incurrence, the Veteran's STRs include a July 2009 post-deployment questionnaire in which the Veteran indicated that he experienced a blast and a fall during his deployment. Addressing nexus, the September 2011 VA examiner opined that based on the Veteran's combat experience and history, it is as likely as not that the Veteran sustained TBI in the line of duty. The Board finds this opinion, provided after reviewing the claims file, to be highly probative, as it reflects consideration of all relevant facts. The examiner also provided an adequate rationale for the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). In light of the evidence of record, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's TBI was incurred in service. Accordingly, resolving all doubt in his favor, service connection is warranted. 38 U.S.C.S. § 5107 (LexisNexis 2017); 38 C.F.R. § 3.102 (2017). PTSD As indicated above, the Board finds that a higher rating of 70 percent is warranted for the period on appeal based on social and occupational impairment with deficiencies in most areas. In addressing why the criteria for a schedular rating higher than 70 percent are not met, the record does not reflect that the Veteran has demonstrated the symptoms associated with a 100 percent rating (the only higher disability evaluation available). The Veteran has not reported persistent delusions or hallucinations, gross impairment in thought processes or communication, inappropriate behavior, an inability to perform the activities of daily living, or any of the other markers of total occupational and social impairment due to PTSD. Additionally, the evidence of record includes an August 2011 VA examination report in which the examiner assigned a GAF score of 66 and opined that the Veteran's level of occupational and social impairment with regard to his PTSD was 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 medication, entitling him to a disability rating of 10 percent, not a 100 percent rating. In June 2014 a VA examiner opined that the Veteran's level of occupational and social impairment with regard to his PTSD was occupational and social impairment with reduced reliability and productivity, entitling him to a disability rating of 50 percent, not a 100 percent rating. In determining that the criteria for a 100 percent rating are not met, the Board has considered the lay assertions, including the Veteran's own statements and testimony, as to his symptomatology and the severity of his condition. In finding that a 70 percent rating is warranted, the Board notes that the Veteran's PTSD has been productive of or characterized by unemployment, impaired social and family functioning, nightmares, exaggerated startle response, angry outbursts, hypervigilance, sleep impairment, memory loss, panic attacks, difficulty concentrating, and suicidal ideation. This combination of symptoms indicates that from the Veteran's disability approximates the criteria for a rating that represents occupational and social impairment with deficiencies in most areas. TDIU The Board finds that the competent and probative evidence of record shows that the Veteran is unable to obtain or maintain gainful employment due to his service-connected disabilities. At the outset, the Board notes that as a result of the increased rating granted in this decision, the Veteran meets the schedular requirements for a TDIU. The record reflects that the Veteran testified during the November 2016 Board Hearing that he had recently lost his job due to his PTSD symptoms and constant headaches related to his TBI. In this regard, a September 2011 VA examiner opined that the Veteran's TBI impacts his ability to work in that he has difficulty with memory and concentration, decreased efficiency, and has missed work due to headaches. Additionally, an October 2013 VA examiner opined that the Veteran's PTSD related anger and missed time from work interfere with his ability to work. Accordingly, the Board finds that the competent evidence, when considered as a whole, is at least in equipoise with respect to the issue of whether the Veteran is unemployable due to the effects of his service-connected disabilities. Therefore, a TDIU is granted. ORDER Service connection for TBI is granted. For the period on appeal, an initial increased rating of 70 percent, but no higher, for PTSD is granted. A TDIU is granted. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs