Citation Nr: 18150483 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-48 348 DATE: November 15, 2018 ORDER Entitlement to service connection for a back disorder is denied. Entitlement to an initial 100 percent rating for PTSD is granted for the period prior to August 12, 2014. Entitlement to an initial rating in excess of 50 percent for PTSD from August 13, 2014 to July 12, 2017 is denied. Entitlement to an initial rating in excess of 70 percent for PTSD from July 13, 2017 is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a back disorder. 2. For the period prior to June 3, 2014, the Veteran’s PTSD did not produce occupational and social impairment with deficiencies in most areas. 3. Granting him the benefit of the doubt, the Veteran’s PTSD produced total occupational and social impairment due to persistent danger of self-harm for the period prior to August 12, 2014. 4. From August 13, 2014 to July 12, 2017, the Veteran’s PTSD did not produce occupational and social impairment with deficiencies in most areas. 5. From July 13, 2017, total social impairment has not been shown. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disorder are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for an initial 100 percent rating for PTSD for the period prior to August 12, 2014 are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for an initial rating in excess of 50 percent for PTSD from August 13, 2014 to July 12, 2017 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 4. The criteria for an initial rating in excess of 70 percent for PTSD from July 13, 2017 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the September 2016 Form 9, the Veteran maintained that VA had died his claim for service connection for a back disability because it did not have his service treatment records. Such is not the case. A review of the file shows that VA does possess the Veteran’s service treatment records, and that those records have been considered. The Veteran has not raised any other issues with the duty to notify or duty to 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, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for a back disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran asserts that he has a back disorder related to service. His service treatment records reflect complaints of back pain and aches. He underwent a VA examination in June 2017. Based on the record, the Veteran’s lay history, and the results of physical examination, the examiner was unable to diagnose any current back disorder. The examiner acknowledged the Veteran’s continuing complaints of back pain, but noted that in-service and post-service X-ray imaging shows no evidence of a back condition. The examiner found no clinical information to support the existence of a residual back disorder related to service. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). There is no competent evidence of a current back disorder. The medical evidence of record, including the June 2017 VA examination report, is negative with respect to any chronic back disorder. The Veteran has not submitted any medical evidence showing a diagnosis of a back disorder. His lay assertion of a back disorder is outweighed by the medical evidence showing otherwise. In the absence of evidence of current disability, the Veteran’s claim for a back disorder must be denied. 2. Entitlement to an initial rating in excess of 50 percent for PTSD prior to July 13, 2017 and in excess of 70 percent thereafter. The Veteran filed a claim for service connection for PTSD on June 3, 2014. An April 2015 rating decision granted service connection for PTSD. A 50 percent disability rating was assigned. The effective date of the award was October 19, 2013, which was the day following service discharge. By a rating action dated in August 2017, the rating assigned for PTSD was increased to 70 percent, effective from July 13, 2017. A total disability rating based on individual unemployability has also been in effect since July 13, 2017. Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran’s psychiatric disability is rated under Diagnostic Code 9411. Under that code, a 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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 requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships. Granting him the benefit of the doubt, the Veteran is entitled to an initial total rating for PTSD from June 3, 2014 to August 12, 2014. On August 5, 2014, the Veteran appeared to establish care at VA reporting suicidal ideation and a recent attempt of self-harm. He was hospitalized until August 12, 2014, at which time he was discharged with no suicidal ideation or intent. Although there is no contemporaneous evidence of the Veteran’s mental health with respect to the appeal period prior to August 5, 2014, his lay reports indicate that he was unemployed and lived alone, and that his symptomology had been ongoing for a significant period prior to his hospitalization, including multiple instances in which he held a loaded gun to his head. See July 2017 VA Examination. Reference is also made to reports made by the Veteran at the time of service discharge wherein he screened positive for depression and PTSD. He endorsed feeling of hopelessness, emotional numbing, and a lack interest in engaging in activities or with others. While he was assessed at having a low risk of suicide, the Veteran has credibly explained that he hid his symptoms to avoid being hospitalized and delaying his release from service. Based on the severity of his symptoms, the lay history, and the submission of a claim for PTSD a few months earlier, the Board finds that the Veteran is entitled to a 100 percent rating for total occupational and social impairment due to persistent danger of self-harm from service discharge to August 12, 2014, the date of discharge from hospitalization. The Veteran is not entitled to an initial rating in excess of 50 percent from August 13, 2014 to July 12, 2017. VA treatment records show that following his hospitalization, the Veteran displayed symptoms of depressed mood and difficulty in adapting to stressful circumstances. However, he frequently denied suicidal ideation and did not display symptoms such as obsessional rituals which interfere with routine activities; impaired speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships. The Board certainly understands that the presence, or absence, of certain symptoms is not necessarily determinative. These symptoms must also cause the occupational and social impairment in the referenced areas. In this regard, the totality of the evidence fails to show that the symptoms of the Veteran’s psychiatric disability produce occupational and social impairment with deficiencies in most areas. Despite reporting feelings of depression, the Veteran maintained regular contact with family members. He reported a particularly strong relationship with his mother, who was a frequent source of social support. Although he was unemployed, he was not seeking work and instead was completing college coursework towards a bachelor’s degree in computer science. The Veteran’s thinking and judgment were found to be intact throughout this period. Finally, the Veteran is not entitled to an initial rating in excess of 70 percent from July 13, 2017. The July 2017 VA examination report and VA treatment records indicate that the Veteran has not had total social impairment. The Veteran has maintained regular contact with family members. He has reported attending family gatherings and visiting his mother, brothers, and their children. The absence of total social impairment precludes the possibility of a 100 percent rating. The Board acknowledges the Veteran’s assertion that he is entitled to an increased rating and his competent and credible lay statements describing his symptomology. Nevertheless, even considering these statements, the weight of the medical and lay evidence simply does not show the level of impairment required for increased ratings from August 13, 2014. Moreover, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel