Citation Nr: 18148986 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-45 580 DATE: November 8, 2018 ORDER An evaluation in excess of 10 percent for impairment of right tibia and fibula (claimed as shin splints) is denied. A compensable evaluation for constipation is denied. An evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. During the appeal, the Veteran’s impairment of right tibia and fibula was not more nearly manifested by moderate knee or ankle disability. 2. During the appeal, the Veteran’s constipation was not more nearly manifested by frequent episodes of bowel disturbance with abdominal distress. 3. During the appeal, the Veteran’s PTSD was not more nearly manifested by occupational and social impairment with deficiencies in most areas due to the severity, frequency, and duration of psychiatric symptoms. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for impairment of right tibia and fibula are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5299-5262. 2. The criteria for a compensable evaluation for constipation are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.3, 4.6, 4.7, 4.114, Diagnostic Code 7399-7319. 3. The criteria for an evaluation in excess of 50 percent for PTSD are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.3, 4.6, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has accepted the Veteran’s untimely September 2016 substantive appeal since the evidence shows the Veteran was not properly notified of the June 2016 statement of the case. The Board observes that, in August 2017, the Veteran reported right ankle, right knee, and right hip disorders. To the extent that she seeks to establish service connection for these disorder, which were previously denied in a March 2007 rating decision, she is advised that all claims for benefits must be submitted on required forms. Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on specific claim form prescribed by the Secretary and available online or at the local Regional Office. This provision effectively removed informal claims from VA’s processes. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation 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. 1. Entitlement to an evaluation in excess of 10 percent for impairment of right tibia and fibula. The Veteran’s shin splints disability has been rated analogously to impairment of tibia and fibula pursuant to 38 C.F.R. § 4.20, and assigned a 10 percent disability evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5299-5262. Hyphenated diagnostic codes are used when an evaluation under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. According to the policy in the Rating Schedule, when a disability is not specifically listed, the Diagnostic Code will be “built up,” meaning that the first 2 digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be “99.” 38 C.F.R. § 4.27. Under Diagnostic Code 5262, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating, with moderate knee or ankle disability warrants a 20 percent rating, and with marked knee or ankle disability warrants a 30 percent rating. Nonunion of the tibia and fibula with loose motion, requiring a brace warrants a 40 percent rating. The Veteran contends the 10 percent evaluation is inadequate. The question for the Board is whether the lay and medical evidence more nearly reflect tibia and fibula impairment with moderate knee or ankle disability. The Board concludes that the preponderance is against the claim for increase. During the appeal, the evidence did not more nearly reflect tibia and fibula impairment with moderate knee or ankle disability. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5262. In a December 2015 VA examination, the Veteran did not report current symptoms. The examiner noted that radiographic imaging from May 2003 did not show an acute or subacute healing fracture. The examiner opined that asymptomatic shin splints did not cause functional limitation. The examiner also noted right knee strain, and opined that there is no anatomical or physiological relationship between shin splints and knee strain. VA medical records reflect no complaints of shin pain. However, knee pain was reported. In an August 4, 2016 VA examination, the examiner noted full range of motion, no effusion, no instability, no patellofemoral crepitus or pain, negative drawer sign, and no pain on McMurray maneuver. The examiner also noted diagnostic imaging which showed no significant or diagnostic abnormality. The examiner opined that the Veteran’s benign, tiny subcutaneous nodule overlying the subcutaneous border of the right tibia is not related to the reported knee symptoms. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Here, neither the lay nor the medical evidence show moderate knee or ankle disability to warrant a 20 percent rating. The Board has considered the Veteran’s reports of knee pain and weakness. However, the Veteran has not demonstrated that these symptoms have resulted functional impairment of earning capacity to warrant a higher rating. Additionally, the objective medical findings reflect no functional impairment, as discussed above. Notably, the Veteran did not report the frequency, severity, or duration of pain or weakness, or provide any examples of functional limitation. The lack of limited range of motion, effusion, instability, patellofemoral crepitus or pain, positive drawer sign, and pain on McMurray maneuver are not indicative of moderate knee disability. Additionally, absent any symptoms or findings of limited range of motion, effusion, instability, patellofemoral crepitus or pain, positive drawer sign, or pain on McMurray maneuver there is no basis to assign a compensable evaluation under any other schedular criteria. Also, there is no basis to stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings). Accordingly, the claim is denied. As the evidence is not in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a compensable evaluation for constipation. The Veteran’s constipation disability has been rated analogously to irritable colon syndrome pursuant to 38 C.F.R. § 4.20, and assigned a noncompensable (zero percent) disability evaluation. 38 C.F.R. § 4.114, Diagnostic Code 7399-7319. Under Diagnostic Code 7319, a noncompensable rating is warranted for mild irritable bowel syndrome, with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent disability rating is warranted for moderate irritable bowel syndrome with frequent episodes of bowel disturbance and abdominal distress. A maximum schedular 30 percent disability rating is warranted for severe irritable bowel syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7399-7319. The Veteran contends the noncompensable evaluation is inadequate. The question for the Board is whether the lay and medical evidence more nearly reflect frequent episodes of bowel disturbance with abdominal distress. The Board concludes that the preponderance is against the claim for increase. During the appeal, the evidence does not more nearly reflect frequent episodes of bowel disturbance with abdominal distress. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.114, Diagnostic Code 7399-7319. VA medical records show complaints of abdominal pain in 2013 and 2014. However, on March 29, 2013, the VA physician opined that the complaints of abdominal pain are more likely of pelvic and back pathology. The Veteran’s appendix was removed following complaints of abdominal pain in July 2013. In a December 2015 VA examination, the Veteran reported constipation with decreased frequency of bowel movements, hard stools, and straining. The examiner noted that the Veteran did not have episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of the intestinal condition. The examiner opined that symptoms of chronic constipation are controlled at this time. Neither the lay nor the medical evidence more nearly reflect the criteria for a higher rating. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Here, neither the lay nor the medical evidence show frequent episodes of bowel disturbance with abdominal distress. Although the Veteran sporadically reported abdominal pain in 2013 and 2014, the attending physician opined the complaints were unlikely of abdominal pathology. Additionally, latter complaints of abdominal pain were contemporaneous to appendix removal, which suggests the pain was not the result of constipation disability. Moreover, the Veteran is service-connected for residuals of laparoscopy which compensates for abdominal pain, and thus any additional Diagnostic Code which compensates for overlapping or duplicative symptoms of abdominal pain would be pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Additionally, absent any symptoms or findings attributable to frequent episodes of bowel disturbance with abdominal distress, there is no basis to assign a compensable evaluation under any other schedular criteria. There is no basis to stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating. See Hart, supra. Accordingly, the claim is denied. As the evidence is not in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b). 3. Entitlement to an evaluation in excess of 50 percent for PTSD. The Veteran contends that the 50 percent evaluation is inadequate. The question for the Board is whether the severity, frequency, and duration of psychiatric symptoms more nearly reflect occupational and social impairment with deficiencies in most areas. The Board concludes that the preponderance of evidence is against the claim for increase. During the appeal, the evidence does not more nearly reflect that PTSD is more nearly manifested by occupational and social impairment with deficiencies in most areas due to the severity, frequency, and duration of psychiatric symptoms. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code 9411. All mental disorders, Diagnostic Codes 9201 through 9440, are evaluated pursuant to the rating schedule set out at 38 C.F.R. § 4.130. The Veteran’s mental disorder is rated at 50 percent under Diagnostic Code 9411. A 50 percent evaluation is warranted 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation is warranted where 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 of 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). 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. 38 C.F.R. § 4.126(b). The symptoms listed in rating schedule for mental disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When the symptoms and/or degree of impairment due to a veteran’s service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Mittleider v. West, 11 Vet. App. 181 (1998). In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-V). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-V. See 38 C.F.R. § 4,125(a). In this case, VA medical records show complaints of anxiety and sleep impairment. In a December 21, 2015 VA appointment, the Veteran reported enjoying her job of the last 18 months in airline reservations and that she was exceeding expectations until August when she became distracted, forgetful, had difficulty completing tasks. The Veteran also reported that while at work she fidgets, leaves seat, and talks excessively. Report of VA PTSD examination dated February 2, 2016 reflects a diagnosis for PTSD. The examiner found occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported working two jobs, but that she cannot keep them up. The Veteran also reported no mental health counseling for 18 months. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. The examiner also noted that the Veteran presented with a depressed affective expression, but maintained good eye contact and expressed herself fluently and coherently. On February 23, 2016, a VA physician noted constricted and anxious affect, less circumstantial thought process, normal speech, fair attention and judgement, no hallucinations or delusions, no suicidal or homicidal ideations, and appropriate thought content with future planning. VA treatment record dated March 14, 2016 reflects that the Veteran reported not working for the past month due to anxiety. The physician reported low mood, lack of interest in social activities, irritability, distractibility, and recklessness. The physician noted no pressured speech and no suicidal or homicidal ideations. A September 2016 statement from the Veteran reflects her report to VA that she was unable to work for approximately 4 months as a result of PTSD. The Veteran also reported difficulty in relationships, and repetitive behaviors that impact daily life. An April 19, 2017 VA treatment note reflects that the Veteran reported that not once in the past 2 weeks was she bothered by little interest or pleasure in doing things. The Veteran submitted a lay statement from a coworker and friend in August 2017. The witness reported that the Veteran had problems concentrating at work, lack of motivation in social and occupational settings, and isolation from relationships. A December 2017 VA treatment note reflect that the Veteran reported having difficulty at work, getting bored and not being able to concentrate. Having carefully considered the evidence of record, the Board finds that neither the lay nor the medical evidence more nearly reflects that PTSD is more nearly manifested by occupational and social impairment with deficiencies in most areas due to the severity, frequency, and duration of psychiatric symptoms during the appeal period. Although the Board accepts that the Veteran is competent to report her symptoms, the Board finds that her symptoms are not of the severity, frequency, or duration to more nearly approximate the criteria for the next higher evaluation-that is a 70 percent evaluation. For instance, the Veteran’s mood symptoms are not of the severity contemplated by the next higher rating insofar as it is not shown that there are disturbances of mood or motivation that interfere with the ability to function independently, appropriately and effectively. Although the record shows anxiety, but no true panic attacks or near continuous panic. Although she has depressed mood, there is no indication she has suicidal thoughts. Although the record shows irritability, there is no indication that she has episodes of unprovoked outbursts with periods of violence. The Board has considered the Veteran’s report that she missed work for several months in 2016 due to PTSD. However, the examinations and medical appointments before and after the claimed time period do not indicate total occupational impairment from PTSD or that PTSD alone had precluded her ability to perform the mental and/or physical acts required for her job. Also, the Board observe that the Veteran has not provided any detailed discussion or description of the PTSD symptoms she believes prevented her working for a period of 5 months as alleged. Further, the coworker statement curiously did not address the missed work reported by the Veteran as due to PTSD; and the Veteran has not submitted documentation from her employer regarding the alleged 5 month absence due to PTSD symptoms. Therefore, this evidence has diminished probative when viewed in the context of all the evidence. The Board has considered the Veteran’s report of neglect of personal hygiene and repetitive behaviors. However, the evidence shows the Veteran presented with a neat appearance during VA appointments on December 1, 2015 and February 23, 2016. Moreover, the VA physicians who encountered the Veteran did not indicate any neglect of personal hygiene. Also, with respect to repetitive behaviors, the Veteran has not provided any clear examples. The Board has considered the Veteran’s report of inability to establish and maintain effective relationships. However, the lay statement from the Veteran’s coworker stated she has known the Veteran for 3 years and has become very close with the Veteran. This suggests that the Veteran is able to establish and maintain effective relationships. The Board has considered the Veteran’s report of impaired impulse control and inability to adapt to stressful situations. However, again, the evidence does not indicate unprovoked irritability with periods of violence or homicidal ideations. With respect to impulsivity, the Veteran has not provided any clear examples. Additionally, the Veteran reported working two jobs and performing well in airline reservations during the appeal period, which does not indicate the inability to adapt to stressful situations. The lay and the medical evidence are probative in this matter. However, it does not reflect the severity, frequency, or duration of symptoms contemplated by the criteria for a 70 percent or higher rating. As to the overall level of impairment, the Board assigns greater probative value to the conclusions reached on the most recent VA examination, as this was predicated on a review of the claims file, interview of the Veteran, and mental status examination of the Veteran by a skilled medical professional with psychiatric training. Therefore, weighing the evidence of record, the Board finds that the Veteran’s PTSD symptomatology does not more closely approximates the schedular criteria for a higher rating. Furthermore, the Board finds that a staged rating is not warranted as the factual findings do not show any other distinct period where the disability exhibited symptoms that would warrant a different evaluation. See Hart, supra; see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Accordingly, the claim is denied. As the evidence is not in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel