Citation Nr: 18149599 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-15 760A DATE: November 9, 2018 ORDER Entitlement to a disability rating in excess of 70 percent for psychiatric disabilities to include schizoaffective disorder and post-traumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for residuals of frostbite is remanded. Entitlement to service connection for GERD is remanded. Entitlement to a disability rating in excess of 10 percent for hypertrophic gastritis post-operative removal of sigmoid colon polyps is remanded. Entitlement to a compensable disability rating for colon polyps is remanded. FINDING OF FACT The most probative evidence of records shows that the Veteran’s psychiatric disabilities were at worst manifest by symptoms productive of functional impairment most comparable to occupational and social impairment with deficiencies in most areas during the period on appeal. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for the Veteran’s psychiatric disabilities have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1974 to June 1980. The matter comes to the Board on appeal from a November 2012 rating decision. VA’s Duty to Notify and Assist With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increased Rating 1. Entitlement to a disability rating in excess of 70 percent for psychiatric disabilities to include schizoaffective disorder and PTSD is denied. As the rating decision on appeal did not provide the initial grant of service connection for the Veteran’s psychiatric disabilities, the period for consideration is from up to one year prior to December 27, 2010, the date the Board received the Veteran’s claim for increased ratings. During the entire period on appeal, the Veteran’s psychiatric disabilities are rated at 70 percent under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Pursuant to Diagnostic Code 9411, a 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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; and the inability to establish and maintain effective relationships. A maximum 100 percent evaluation is for application 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; and memory loss for names of close relatives, own occupation, or own name. A review of the relevant medical evidence of record shows that the Veteran’s psychiatric disabilities were at worst manifest by an occupational and social impairment with difficulties in most areas during the period on appeal. A June 2012 VA examiner found the Veteran’s disability to be manifest by an occupational and social impairment with difficulties in most areas. The Veteran reported living with his wife and mother, and had been married 22 years. The Veteran reported symptoms of depression, anxiety, poor sleep, difficulty with relationships, and persistent delusions or hallucinations. The Veteran reported hearing voices all the time. The examiner noted that the Veteran endorsed all symptoms presented, showing either a cry for help or overreporting for material gain. The examiner noted the Veteran’s presentation was unusual. A second VA examination in June 2016 characterized the Veteran’s disability as manifest by an occupational and social impairment with reduced reliability and productivity. The Veteran reported a strained relationship with his wife, but was committed to his children. He stated that he cared for his mother and cleaned his house daily. He took his mother to her appointments. The examiner noted reported symptoms of anxiety and persistent hallucinations, but again noted that there seemed to be some overreporting that impacted the validity of testing. The findings of the VA examiners are consistent with the other medical evidence of record. The record, to include the VA examinations, does not show gross impairment of thought, grossly inappropriate behavior, inability to perform activities of daily living, disorientation, or memory loss. While the Veteran reports persistent hallucinations, he has close familial relationships, takes his mother to appointments, and was noted as potentially overreporting his symptoms. While the Veteran may contend he is entitled to a higher rating, the Board affords greater probative weight to the findings of the medical professionals who examined the Veteran. While the Veteran is competent to report symptoms he has experienced, he has not been shown to have the requisite medical and/or regulatory knowledge or expertise to be deemed competent to opine as to the level of severity of his disability in conjunction with the applicable rating criteria. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds that during the rating period on appeal, the Veteran’s psychiatric disabilities were at worst manifest by symptoms productive of functional impairment most comparable to occupational and social impairment with deficiencies in most areas. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for residuals of frostbite is remanded. The Veteran attended a VA examination in July 2011 to determine the nature and etiology of his claimed frostbite injury. There, the examiner opined that it was less likely than not that the Veteran’s “expressed” current frostbite condition is related to complaints of a frost bite injury shown in the service treatment records. The examiner reasoned that while the Veteran was seen in service for a reported frostbite injury in service, the physical examination at the time was normal, and that there is no evidence of the claimed medical condition in records since service or to date. The Board finds this opinion inadequate for decision making purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The examination report is not clear as to whether the Veteran has a current disability from residuals of frostbite. If the Veteran does have a current disability, the examiner’s opinion does not consider the Veteran’s lay contentions that he has had his symptoms since service. As such an addendum opinion is necessary on remand. 2. Entitlement to service connection for GERD is remanded. A June 2012 VA examiner opined that the Veteran’s GERD was less likely than not incurred in or caused by service. However, the Veteran has contended that his service-connected gastritis has aggravated his GERD. The record does not contain a competent medical opinion as to whether it is at least as likely as not the Veteran’s GERD is proximately due to or aggravated by a service-connected condition. Id. Thus, the June 2012 opinion is inadequate for decision making purposes and an addendum is necessary on remand. 3. Entitlement to a disability rating in excess of 10 percent for hypertrophic gastritis post-operative removal of sigmoid colon polyps is remanded. In their brief, the Veteran’s representative has specifically contended that an additional opinion or examination with regard to the Veteran’s GERD would likely reveal evidence sufficient to warrant a higher rating for the Veteran’s gastritis, such that the issue is inextricably intertwined with entitlement to service connection for GERD. The Board, in affording the benefit of the doubt to the Veteran, concurs and will thus remand the issue of entitlement to a higher rating for gastritis pending resolution of the issue of entitlement to service connection for GERD and consideration of additional relevant evidence. 4. Entitlement to a compensable disability rating for colon polyps is remanded. While the Veteran did not properly perfect an appeal for the issue following its presence on the March 2016 Statement of the Case, the Board notes that the most recent December 2017 Supplemental Statement of the Case listed the issue as on appeal. The Veteran may justifiably rely on the supplemental statement of the case to list the issues on appeal, and as such, the issue is properly before the Board. See e.g., Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board finds the issue of a higher evaluation for colon polyps to be similarly inextricably intertwined with the issue of entitlement to service connection for GERD and entitlement to a higher rating for gastritis, which is noted in the record as associated with colon polyp removal surgery. As such, the matter is remanded pending adjudication of intertwined issues and consideration of any additional evidence. The matters are REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who provided the July 2011 cold injury examination, or, if that examiner is unavailable, to another suitably qualified examiner for completion of an addendum opinion. The examiner should conduct a new examination if necessary to provide an adequate opinion. The examiner must provide an opinion as to whether: a) It is at least as likely as not (50 percent probability or greater) the Veteran has a current disability manifest by residuals of a frostbite injury. b) If so, is it at least as likely as not (50 percent probability or greater) that the Veteran’s current frostbite residuals were incurred in or caused by service, specifically the Veteran’s reported frostbite injury in 1976 that is evident in the service treatment records. The examiner must address the Veteran’s lay contentions that he has had worsening symptoms continuously since service. The entire record should be reviewed and the examiner should indicate that a review was completed. A complete rationale must be provided for any conclusion reached. 2. Forward the record and a copy of this remand to the examiner who provided the June 2012 GERD examination, or, if that examiner is unavailable, to another suitably qualified examiner for completion of an addendum opinion. The examiner should conduct a new examination if necessary to provide an adequate opinion. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s GERD is proximately due to or aggravated by a service-connected condition, specifically gastritis. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In the rationale, the examiner must consider lay statements of the Veteran. 3. After completion of the above, review the expanded record, including any evidence entered since the most recent supplemental statement of the case, and determine whether the benefits sought may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Baker, Associate Counsel