Citation Nr: 18141115 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 13-11 591 DATE: October 9, 2018 ORDER Entitlement to service connection for residuals of a traumatic brain injury (TBI), including headaches, is denied. Entitlement to increases in the (50 percent prior to November 17, 2015 and 70 percent since) “staged” ratings for posttraumatic stress disorder (PTSD) are denied. FINDINGS OF FACT 1. The Veteran alleges that he sustained a head injury in service, but medical treatment records supporting such an injury have not been shown, and no residual disability or impairment is shown. 2. The Veteran’s PTSD is not shown to have had manifestations resulting in deficiencies in most areas at any time prior to November 17, 2015; and at no time from that date onward is his PTSD shown to have had manifestations resulting in total occupational and social impairment. CONCLUSIONS OF LAW 1. Service connection for residuals of a TBI is not warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. Ratings for PTSD in excess of 50 percent prior to November 17, 2015, and in excess of 70 percent from that date onward are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.125, 4.129, 4.130, Diagnostic Code (Code) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May to August 1983 and from to October 1990 to September 2001. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision, which denied service connection for residuals of a TBI and granted service connection for PTSD and assigned an initial rating of 50 percent. In November 2014 a video conference hearing was held before the undersigned; a transcript is included in the record. A December 2015 rating decision increased the rating for PTSD to 70 percent effective November 17, 2015. A November 2016 rating decision granted TDIU and assigned an effective date of November 17, 2015. 1. Service connection for residuals of a TBI, including headaches is denied. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (CAVC) has held the requirement that a current disability be present is satisfied when a claimant has a disability at the time of a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). An October 1991 screening note of acute medical care notes that there was no history of recent trauma. On May 2012 initial evaluation of residuals of TBI examination the examiner noted that the Veteran reported a head injury in the summer of 1991, but did not find medical evidence to substantiate that statement. The Veteran had no complaints of impairment of memory, attention, concentration, or executive functions. Judgment was normal, and social interactions were routinely appropriate. It was noted that he was oriented to person, time, place, and situation. Motor activity, and visual special orientation were normal. No subjective symptoms were reported. The Veteran could communicate by spoken and written language (expressive communication) and to comprehend spoken and written language consciousness normal. On May 2012 Headaches examination the diagnosis was non-specific headaches. Headache symptoms included constant head pain of unvarying intensity with no prostrating migraines that improves with activity with nausea, sensitivity to light, sensitivity to sound. No functional impact on ability to work was noted. A November 2013, neurology consultation, notes complaints of daily migraines associated with blurring of vision. A history of head trauma was noted, but no prior CT or MRI had been obtained. A December 2013 MRI brain scan showed a mild degree of mucosal thickening is at the ethmoid air cells bilaterally. No other abnormalities are at the paranasal sinuses and orbits. The impression was a negative brain scan. At the November 2014 video conference hearing the Veteran testified that he hit his head on an aircraft in 1991-1992 and lost consciousness and received six stitches at Fort Eustis. He also testified that he was placed on sick leave. June 2015 correspondence requests records of treatment for the Veteran for any evaluation or treatment he underwent for a head injury from December 1990 to June 1991. An August 2015 correspondence from Fort Eustis notes that a thorough review of files failed to reveal any of the requested records at that facility. On December 2015 Central nervous system and neuromuscular diseases examination no diagnosis of a central nervous system condition was noted. Examination noted normal speech, normal gait, normal strength testing. It was noted that the Veteran had a scar. A normal MRI in 2013 was noted. Initially, the Board notes that the Regional Office (RO) has complied with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). There remains some uncertainty as to whether the Veteran sustained a head injury in service. He has alleged such incident occurred, and the Board has no reason to find his statements that he sustained such head injury to not be credible. However, there are no records associated with the alleged hospitalization and an October 1991 (shortly after when the Veteran alleges the head injury occurred) it was noted in a treatment record that the Veteran had no history of recent trauma. In this case the Board finds the Veteran credible that he sustained a head injury in service. However, the question then becomes whether or not the Veteran has a current disability associated with service. The only competent medical evidence of record is the May 2012 VA examination which did not find evidence of residuals of a TBI, a normal December 2013 MRI brain scan, and a December 2015 central nervous system examination. All of which is against a finding of current residuals of a TBI. The Board acknowledges the Veteran’s testimony from the November 2014 video conference hearing that he currently has residuals of a TBI from service. However, the diagnosis of current residuals of a TBI is a medical question for which a medical opinion is necessary. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). As the medical evidence does not show the present disability for which service connection is sought (residuals of TBI), service connection for residuals of TBI is not warranted. Accordingly, the Board finds the preponderance of the evidence is against the Veteran’s claim seeking service connection for residuals of a TBI, and the appeal in this matter must be denied. 2. Increases in the (50 percent prior to November 17, 2015 and 70 percent from that date) “staged” ratings assigned for PTSD are denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. PTSD is rated under Code 9411 and the General Rating Formula for Mental Disorders, which provides for a 100 percent rating when there is 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. A 70 percent rating is warranted when there is 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 50 percent rating is warranted if there is 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the United States Court of Appeals for Veterans Claims noted that the list of symptoms in the Board’s general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather is to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and “staged” ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). In a February 2012 treatment record the PTSD screening test was positive with a score of four. The Veteran responded that he had nightmares, tried not to think about it or went out of the way to avoid situations that remind you of it, was constantly on guard, watchful, or easily startled, felt numb or detached from others, activities, or surroundings. He denied thoughts of suicide. On March 2012 VA examination the diagnosis was PTSD. Symptoms were described as occupational and social impairment due to mild or transient symptoms which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Noted symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbance of motivation and mood, inability to establish and maintain effective relationships. At the November 2014 video conference hearing the Veteran testified that he had daily suicidal thoughts and nightmares with difficulty sleeping. In August 2015 a records request was sent to the McDonald Army Health Center for all outpatient psychiatric evaluation. On November 2015 VA examination the diagnosis was PTSD. It was noted that migraines were “relevant to the understanding or management of the mental health disorder.” Symptoms were described as occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking and/or mood. A November 2016 general medical VA examination the examiner noted that the Veteran had a diagnosis of PTSD with classic symptoms of hyperarousal and avoidance. He also noted sleep disturbance and anger issues. The Veteran stated that he gets angry very easily and does not get along with people. The examiner concluded that based on examination and interview that the Veteran was unable to function in a work environment because he cannot interact with others on a daily basis. The examiner noted that he was very irritable and needs to stick to a set routine. He also noted that the Veteran had poor sleep that causes fatigue, and he has a constant headache that would limit his ability to function in a work environment. The record shows that prior to November 17, 2015 the Veteran’ PTSD was manifest by symptoms such as nightmares, mild occupational and social impairment, and depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbance of motivation and mood, inability to establish and maintain effective relationships. Such level of functioning does not reflect that his PTSD caused deficiencies in most areas, and a rating in excess of 50 percent was not warranted prior to November 17, 2015. As a 70 percent rating was assigned effective November 17, 2015 (the date of a VA examination) the analysis turns to whether a rating in excess of 70 percent is warranted from that date. At no time from November 17, 2015, is the disability picture of the Veteran’s PTSD shown to have been one of total occupational and social impairment. The record does not indicate that the Veteran has demonstrated an inability to perform activities of daily life, or such deficiencies as grossly inappropriate behavior or hallucinations. Examinations in November 2015 and November 2016 note that the Veteran demonstrated difficulties with social interactions, but did not find that such difficulties rose to the level of total occupational or social impairment. Additionally, a November 2016 rating decision found the Veteran competent based on his ability to manage his own affairs. Accordingly, a rating in excess of 70 percent for PTSD is not warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel