Citation Nr: 18151319 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-14 699A DATE: November 16, 2018 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for head disorder is denied. REMANDED Entitlement to service connection for a respiratory disorder is remanded. FINDINGS OF FACT 1. The Veteran’s PTSD has been manifested by no more than occupational and social impairment with reduced reliability and productivity throughout the appeal period. 2. The Veteran does not have a current head disorder. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to service connection for a head disorder are not met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 2002 to January 2006, to include service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in December 2012 and March 2015 of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2018 and May 2018, the Veteran withdrew his requests to appear at a hearing before a member of the Board. 38 C.F.R. § 20.704(e). 1. Entitlement to an initial rating in excess of 50 percent for PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s PTSD is rated pursuant to 38 C.F.R. § 4.130, DC 9411, which is under the General Rating Formula for Mental Disorders. Under DC 9411, a 50 percent rating 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; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned 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. Id. A 100 percent rating is warranted if 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. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Initially, the Board notes that the Veteran is also diagnosed with nonservice-connected depression and anxiety disorder not otherwise specified. See March 2014 VA treatment record. The evidence of record does not sufficiently distinguish the symptoms of these disorders from his service-connected PTSD. Thus, the Board’s discussion attributes all of the Veteran’s mental health symptoms to his service-connected PTSD. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Upon review of the totality of the record, a rating in excess of 50 percent is not warranted at any point during the appeal period, as the Veteran’s symptoms are not of such a severity or frequency to result in occupational and social impairment with deficiencies in most areas or total occupational and social impairment. In this regard, there is no evidence of: suicidal or homicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic attacks or depression affecting the ability to function independently; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or any other symptoms of similar severity, frequency, and duration. On the contrary, the VA treatment notes show normal speech and communication skills, cooperative behavior, and normal thought processes. The Veteran’s hygiene was appropriate and within normal limits, and he was oriented at all times. As to social impairment, the Veteran reported that he has a few friends, but is closest with his brother and fiancé, with whom he has been with for 3 years. See June 2013 and March 2014 VA treatment records. In June 2014, he stated that married life was great and that he comfortably lived with his wife and her parents. See June 2014 VA treatment record. He indicated he was getting along well with his wife’s family and also stated that he kept busy with his friends and wife, and enjoyed fishing, hunting, softball, and riding his motorcycles. Id. He remarked that he had several friends who were veterans and that they were planning a ride together. Id. At the January 2015 VA examination, the Veteran reported symptoms of anhedonia and increased arousal and indicated that he withdrew, which affected his marital relationship. He described the relationship as “so-so.” He also indicated having conflicts with his wife. See January 2016 VA treatment record. Overall, the Board finds the Veteran has demonstrated an ability to maintain some social relationships without extensive impairment. With respect to difficulty in adapting to stressful circumstances (including work or a work-like setting), in a June 2014 VA treatment record, the Veteran reported performing well at his job and stated that he enjoyed his work as well as his relationship with his immediate supervisor. In the January 2015 VA examination report, he denied any job-related problems. In September 2015, despite having a rough couple of weeks, the Veteran reported that he still went to work even though he broke down there. See September 2015 VA treatment record. Upon review, the Board finds this evidence does not reflect occupational and social impairment with deficiencies in most areas. With respect to near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, the January 2015 VA examiner noted that the Veteran had depressed mood and anxiety. In a September 2015 VA treatment record, the Veteran endorsed feeling depressed over the last two weeks and reported that his mentor recently passed away, as well as four guys from his platoon. In January 2016, he reported feeling down and having no motivation over the last month. See January 2016 VA treatment record. There is no indication in the record of an inability to function independently, appropriately and effectively. Thus, while the Veteran experienced depression and anxiety, the Board finds his symptoms are contemplated by the 50 percent rating and are not so severe as to affect his ability to function independently, appropriately and effectively, nor could they be considered “near-continuous” in nature. As to impaired impulse control, the Veteran has frequently reported irritability. He remarked that his anger comes out when he becomes anxious or on edge and indicated having violent ideations due to occasional rage-related impulses. See June 2013 VA treatment record. His violence risk assessment, however, was noted to be low and impulse control was noted to be fair. Id. The evidence shows no history of physical violence, inappropriate behavior, or danger of hurting others during the appeal period. Further, VA treatment records consistently reflect normal thought content and processes, as well as good insight and judgment. Thus, while the Veteran struggles with transient and intermittent periods of irritability, the Board finds his symptoms do not correlate with impaired impulse control sufficient to warrant a higher evaluation. In conclusion, the Board finds the Veteran’s PTSD symptoms, throughout the entire appeal period, have been manifested by no more than occupational and social impairment with reduced reliability and productivity and are characteristic of the criteria considered by a 50 percent disability rating. The evidence of record does not support a finding that the Veteran has exhibited the level of cognitive, occupational, and social impairment in most areas, as he has never demonstrated symptoms of similar severity, frequency, or duration as to those contemplated by the 70 percent criteria or the 100 percent criteria. 2. Entitlement to service connection for head disorder. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As noted above, the Veteran served in the Southwest Asia during the Persian Gulf War. Therefore, service connection may also be established under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under those provisions, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). Upon review of the totality of the record, the Board finds that the evidence of record is against the Veteran’s claim of service connection for a head disorder, as there is no competent evidence that he has been or is currently diagnosed with a head condition or a disability due to an undiagnosed illness. The United States Court of Appeals for Veterans Claims has held that the current disability requirement 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,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability.” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Neither of these criteria are met in this case. The Veteran filed his claim for service connection for his claimed disorder in December 2011, and the evidence does not reflect a diagnosis of a head disorder or symptoms indicative of the same in the evidence dated prior or at the time of the filing of his claim. The September 2012 VA examiner did not diagnose the Veteran with a head disorder or a disability due to an undiagnosed illness. Rather, the examiner opined that the claimed condition was more likely than not due to a mental health condition such as PTSD or depression, as the Veteran described his head problems to include difficulty concentrating, difficulty dealing with memories of Iraq, and difficulty handling the loss of co-worker. Thus, the preponderance of the evidence is against the Veteran’s claim of service connection for a head disorder. To the extent the Veteran asserts that he has a head disorder due to an undiagnosed illness, the Board finds that he is not competent to do so, as this is a complex medical question that is beyond the ability of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, as the first element of service connection is not met at any point during the appeal period, the claim fails on this basis alone. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of present disability there can be no successful claim); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disorder is remanded. The Veteran is seeking service connection for a respiratory disorder. The Board notes that the Veteran’s enlistment examination, dated in May 2002, does not identify asthma or any other respiratory disorders. Rather, it shows that the examiner found no disqualifying defects or diseases. Moreover, the Veteran specifically denied a history of asthma, breathing problems, or inhaler use at service entrance. See May 2002 Report of Medical History and Medical Prescreen of Medical History Report. In the September 2012 VA examination report, the examiner stated that the Veteran’s asthma clearly existed prior to service, based on his medical records, which indicate a diagnosis of asthma at age 16. The examiner further stated that there was no evidence found to support permanent aggravation, but did not provide any rationale. This opinion is inadequate, as the Board notes that an examiner cannot state that a Veteran’s disability clearly and unmistakably was not aggravated by service merely because that there was a lack of medical evidence to support a claim of aggravation. Accordingly, an addendum opinion is necessary on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Any outstanding VA and private treatment records should also be secured. The matter is REMANDED for the following actions: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then refer the claims file to an examiner for preparation of an addendum opinion as to the etiology of the Veteran’s respiratory disorder. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner is asked to address the following: (a) Is there clear and unmistakable (obvious, manifest, and undebatable) evidence that any currently diagnosed respiratory disorder, to include asthma, existed prior to active service? Please discuss any medical evidence to support your conclusion. (b) If the answer to question (a) is yes, is there clear and unmistakable (obvious, manifest, and undebatable) evidence that the pre-existing respiratory disorder WAS NOT aggravated (worsened beyond natural progress) during service? (c) If the answer to question (a) is no or the answer to question (a) is yes and question (b) is no, is it at least as likely as not (50 percent or greater probability) that any currently diagnosed respiratory disorder, to include asthma, had its onset in service or is otherwise related to service, to include as a result of presumed environmental exposures (e.g., burn pits, oil fires, sand storms) during the Veteran’s service in Southwest Asia, as well as the documented diagnosis of bronchitis therein. See December 2003 service treatment record. A complete rationale should be given for all opinions and conclusions expressed. If the examiner is unable to render an opinion without resorting to speculation, a full rationale must be provided for that conclusion. M. M. CELLI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.S. Mahoney, Associate Counsel