Citation Nr: 1802972 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-03 661A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent prior to August 14, 2017 and in excess of 50 percent from August 14, 2017 to the present for the service-connected posttraumatic stress disorder (PTSD) with mood features and psychoactive substance use disorder. 2. Entitlement to service connection for residuals of a traumatic brain injury (TBI). 3. Entitlement to service connection for fatigue. 4. Entitlement to service connection for gastroenteritis. 5. Entitlement to service connection for sleep disturbances. 6. Entitlement to service connection for a bilateral shoulder disorder. 7. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Seth C. Berman, Attorney ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2002 to August 2002 and from February 2003 to May 2004, with additional service in the Reserves. His awards and decorations include the Army Commendation Medal and the Global War on Terrorism Expeditionary Medal. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. This matter came before the Board in July 2017 at which time the Board remanded for a VA examination and medical records. There has been substantial compliance with the remand and no further action is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of service connection for a TBI, fatigue, sleep disturbances, gastroenteritis, bilateral hearing loss, and a bilateral shoulder disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's PTSD was manifested by weekly panic attacks, anxiety, chronic sleep impairment, irritability, impaired impulse control, concentration issues, substance abuse, mood disturbances, memory issues, and difficulty maintaining effective work and social relationships, but with normal speech, normal thought processes, appropriate behavior, an ability to maintain personal hygiene and engage in other basic activities of daily living, and intact orientation. 2. For the entire period on appeal, the Veteran's PTSD was not manifested by impaired speech, obsessional rituals interfering with routine activities, suicidal or homicidal ideation, neglect of appearance or hygiene, disorientation to person, place, or time, near-continuous panic or depression, difficulty adapting to stressful circumstances, or an inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. Prior to August 14, 2017, the criteria for a 50 percent rating, but no higher, were met for PTSD with mood features and psychoactive substance use disorder. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. For the entire appeal period, the criteria for a rating in excess of 50 percent have not been met for PTSD with mood features and psychoactive substance use disorder. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. The Board finds that VA's duties to notify and assist have been met. Except as discussed herein, the Veteran has not raised issues with the duties to notify or 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 (Fed. Cir. 2016) (applying Scott to the duty to assist). Moreover, no new evidence was received after the October 2017 Supplemental Statement of the Case; thus, all due process considerations have been met. The pertinent regulations were provided to the Veteran in the Statement and/or Supplemental Statement of the Case and will not be repeated here. Higher Initial Rating for PTSD The Veteran contends that he is entitled to a higher initial rating for his symptoms, which include impaired impulse control, violence, memory loss, panic attacks, and difficulty working with others. He also contends that his condition prevents him from leaving the house some days because he is afraid he would hurt someone else. In June 2014, he reported that he was fired because he assaulted a customer who was harassing a waitress at his job. VA medical records show he was referred for treatment in February 2005 by his Reserve superior, at which time he was voluntarily hospitalized due to his history of a suicide attempt and present mental health symptoms. He was discharged in mid-February 2005 with diagnoses of major depressive disorder and alcohol abuse, and he did not return for treatment, against medical advice, until July 2013. In May 2011, he was afforded a VA examination to assist in assessing the severity of his PTSD. He complained of insomnia, tension, anxiety, irritability, impulse problems with bouts of violence, and a history of substance abuse. He reported that he had friends but could be isolative, and he had several hobbies that he enjoyed, including playing guitar and painting. The report noted that the Veteran was hospitalized for a suicide attempt but later discharged at his request. A mental status examination revealed normal thought processes, normal communication, appropriate behavior, an ability to maintain personal hygiene and engage in other basic activities of daily living, no suicidal or homicidal ideation, no memory impairment, no obsessive or ritualistic behavior, normal speech, normal orientation, weekly panic attacks, previously moderate to severe impaired impulse control, and sleep impairment. Subsequently, the Veteran presented to VA for mental health treatment in July 2013 because he was anxious and afraid to go to work for fear he might hurt someone. He reported drinking to intoxication every day, smoking marijuana, and recently fighting with someone. While he was currently employed, he stated that he had difficulty working with coworkers and was often fighting with them. He was offered voluntary hospitalization but declined. In April 2014, he underwent a mental health medication initial assessment. He reported experiencing an unstable mood, difficulty sleeping, guilty and worthless thoughts, and difficulty concentrating, as well as good energy and maintaining interest in music and handwork. A mental status examination revealed normal speech, bad mood, tense affect, and normal thought processes and content. While he denied suicidal and homicidal ideation, he endorsed hopeless thoughts. A May 2014 mental health triage note shows that his symptoms had worsened, and he reported anxiety, panic, intense isolation and depression. He also admitted to violent behavior while drinking but denied using alcohol or other substances recently. It was also noted that he had normal insight and was impulsive. A June 2014 mental health medication management evaluation shows that he had lost his job due to an outburst with a customer. The mental status examination revealed normal psychomotor, normal speech, a panicky mood, an uncomfortable affect, normal thought process and content, no suicidal or homicidal ideation, no hallucinations, fair insight, impulsive judgment, and intact cognition. He was afforded a second VA examination in October 2014 and reported that he was living with his girlfriend, applying for jobs, exercising, and engaging in hobbies. He completed culinary school in 2012 and has worked as a cook since then, but was unemployed due to difficulty getting along with others, including fighting with coworkers and customers. He reported symptoms of a depressed mood, anxiety, chronic sleep impairment, difficulty establishing and maintaining effective work and social relationships, concentration issues, and impulsivity. A mental status examination revealed normal thought processes, normal communication, appropriate behavior, a euthymic mood, an ability to maintain personal hygiene and engage in other basic activities of daily living, no suicidal or homicidal ideation, no memory impairment, no obsessive or ritualistic behavior, normal speech, and normal orientation, as well as concentration difficulties and sleep impairment. The examiner concluded that his symptoms cause occupational and social impairment with reduced reliability and productivity. The examiner also diagnosed the Veteran with Attention-Deficit/Hyperactivity Disorder (ADHD) and related his concentration and impulsivity issues solely to his nonservice-connected ADHD. This diagnosis, however, was contested in the August 2017 examination. Resolving reasonable doubt in favor of the Veteran, the Board considered all of his symptoms when determining an appropriate rating for the service-connected PTSD. The record is silent for further mental health treatment until August 2017, when the Veteran was referred to the Sarasota County CBOC. He denied feeling depressed, isolating, experiencing low motivation, and instead reported being active and able to do things on a daily basis. A mental status examination revealed appropriate dress, normal psychomotor, a fine and euthymic mood, normal speech, a broad and congruent affect but appropriately reactive, intact orientation, normal concentration, grossly intact memory, fair insight and judgment, and normal thought processes and content, and no obsessions or compulsions, suicidal or homicidal ideations. He underwent another VA examination in August 2017. He denied significant difficulties with gambling and violence, inpatient hospitalizations, and suicidal ideation since his last examination but admitted to Kratom addiction. The examiner noted the following symptoms applied to the Veteran's PTSD: anxiety, chronic sleep impairment, irritability, anger, weekly panic attacks, memory impairment, disturbances of mood and motivation, and difficulty in establishing and maintaining effective work and social relationships. However, the Veteran had gotten married and had a young child. The examiner concluded that his symptoms cause occupational and social impairment with reduced reliability and productivity. VA treatment records dated around the time of and subsequent to the 2017 VA examination showed continued denials of suicidal or homicidal ideations. The Veteran reported decreased substance use, sleeping 8 hours per night, and continued interests in activities such as music, painting, and book binding. In consideration of the lay and medical evidence, the Board finds that the Veteran is entitled to a 50 percent rating for the period prior to August 14, 2017. For that period, his PTSD was predominantly manifested by weekly panic attacks, anxiety, chronic sleep impairment, irritability, impaired impulse control, concentration issues, substance abuse, mood disturbances, abnormal affect, and difficulty maintaining effective work and social relationships. For example, the Veteran had difficulty maintaining employment due to his isolative behavior, irritability, difficulty working with others, and impaired impulse control. The Board finds, however, that he is not entitled to a rating in excess of 50 percent for any period on appeal. The evidence shows consistent reports of normal speech, normal thought processes, appropriate behavior, an ability to maintain personal hygiene and engage in other basic activities of daily living, and intact orientation. Although the evidence documents impaired impulse control with occasional periods of violence, such as fighting with a customer or coworker, and a history of a suicide attempt, the Board finds that his PTSD is predominantly manifested by symptoms that warrant a 50 percent rating. The entirety of the evidence indicates that his symptoms cause reduced reliability and productivity, but do not cause deficiencies in most areas, such as work, family relations, judgment, thinking, and mood. His thought processes, speech, judgment, thought content, orientation, appearance, and ability to engage in activities of daily living were consistently determined normal or intact, and he did not manifest other symptoms that warrant a higher rating, such as near-continuous panic/depression affecting function or an inability to establish or maintain relationships. Importantly, during the period on appeal, the Veteran denied, and was not hospitalized for, suicidal ideation. Accordingly, a rating in excess of 50 percent for the entire period on appeal is denied. ORDER Entitlement to a 50 percent rating, but no higher, prior to August 14, 2017 for posttraumatic stress disorder (PTSD) with mood features and psychoactive substance use disorder is granted. Entitlement to a rating in excess of 50 percent for the entire appeal period for posttraumatic stress disorder (PTSD) with mood features and psychoactive substance use disorder is denied. (CONTINUED ON NEXT PAGE) REMAND In June 2017, the Veteran submitted a notice of disagreement in response to the October 2016 rating decision that denied service connection for a TBI, fatigue, sleep disturbances, gastroenteritis, bilateral hearing loss, and a bilateral shoulder disorder. A review of the record shows that the Veteran has not been furnished a Statement of the Case. Because the notice of disagreement placed these issues in appellate status, the issues must be remanded for the originating agency to issue a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: Provide the Veteran with a Statement of the Case as to the issues of service connection included in the June 2017 Notice of Disagreement. The Veteran should be informed that he must file a timely and adequate substantive appeal to perfect an appeal of these issues to the Board. If a timely substantive appeal is not filed, the claim should not be certified to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs