Citation Nr: 18158877 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-50 516 DATE: December 18, 2018 ORDER 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. 2. Entitlement to an initial disability rating in excess of 30 percent for primary insomnia is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has been diagnosed with PTSD in accordance with the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders (DSM) for any period on appeal. 2. For the entire period on appeal, the Veteran’s primary insomnia has not been manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125(a) (2017). 2. The criteria for an initial disability rating in excess of 30 percent for primary insomnia have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9433 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1970 to April 1974, from February 1991 to July 1991, from October 2001 to September 2002, and from February 2003 to February 2004. In a VA Form 21-4138, Statement in Support of Claim, received in September 2016, and in the Veteran’s VA Form 9, Appeal to the Board, received in October 2016, he included allegations of other issues that are not part of the current appeal. If the Veteran wants to reopen a previously-denied claim or file a new claim for compensation benefits, he should submit a formal claim for such benefit or benefits. 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Specifically, service connection for PTSD requires the presence of three particular elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2017). For the purposes of establishing service connection, medical evidence diagnosing PTSD must be in accordance with 38 C.F.R. § 4.125(a) (2017), which refers to the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders (DSM) as the source of criteria for the diagnosis of claimed psychiatric disorders. The Veteran asserts that his claimed PTSD is due to an in-service stressor event in Germany, when an aircraft crash during take-off resulted in the deaths of the entire crew. Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to service-connection for PTSD. Significantly, the Board finds that the probative evidence of record does not document that the Veteran has been diagnosed with PTSD in accordance with the DSM for any period on appeal. As such, service connection is not warranted, as the Veteran does not have a current PTSD disability. Post-service VA treatment records document a negative PTSD screen in September 2008, followed by a positive PTSD screen in August 2013. Notably, however, a positive PTSD screen does not equate to a diagnosis of PTSD made in accordance with the DSM. Moreover, the additional medical evidence of record does not document a diagnosis of PTSD. Private treatment records from April 2013 document an assessment of anxiety disorder, not otherwise specified, and a May 2013 VA psychology consultation documents Axis I psychiatric diagnoses of anxiety disorder, depressive disorder, and alcohol abuse. Following the May 2013 VA psychology consultation, the Veteran was referred for a dual diagnosis research study. In that regard, the Board acknowledges a July 2013 letter from a private physician which states that as part of a research project at a VA Medical Center, the Veteran was diagnosed with a dual diagnosis of PTSD and alcohol dependence, for which he received mental health treatment. To the extent that the July 2013 letter states that the Veteran was diagnosed with PTSD, the Board finds that it is of no probative value, as it does not document any psychiatric testing or rationale for a diagnosis of PTSD; moreover, it is inconsistent with the additional evidence of record, including the May 2013 VA psychology evaluation, which resulted in the Veteran’s referral to the research project and the February 2015 VA examination discussed immediately below, both of which fail to document a diagnosis of PTSD in accordance with the DSM. Thus, stated differently, this statement that the Veteran has PTSD is outweighed by the May 2013 VA psychology evaluation, which did not diagnose PTSD. It is also outweighed by the February 2015 VA examiner’s opinion, as the February 2015 examiner provided an explanation for why the Veteran’s disability picture did not meet the criteria for a diagnosis of PTSD. Upon VA psychiatric examination in February 2015, and following relevant psychiatric testing, a VA examiner concluded that the Veteran’s psychiatric symptoms did not meet the diagnostic criteria for PTSD under the DSM; rather, the examiner diagnosed primary insomnia, for which the Veteran has already been granted service connection. To the extent that the Veteran has repeatedly asserted that he has been diagnosed with PTSD, such statements are of no probative value given the Veteran’s lack of psychiatric expertise and their inconsistency with the additional medical evidence of record, including as discussed above, which does not document a diagnosis of PTSD in accordance with the DSM for any period on appeal. Additionally, his determination is outweighed by the February 2015 VA psychologist’s opinion that his disability picture does not meet the full criteria for a diagnosis of PTSD. Given the above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for PTSD. As such, there is no reasonable doubt to be resolved, and the claim must be denied. 2. Entitlement to an initial disability rating in excess of 30 percent for primary insomnia. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. With respect to the Veteran’s initial rating claim, the Board has considered his claim from the currently assigned effective date, as well as whether any staged ratings periods are warranted. The Veteran’s service-connected primary insomnia is currently rated as 30 percent disabling from May 28, 2013 under Diagnostic Code (DC) 9433 of the General Rating Formula for Mental Disorders. Under the applicable rating criteria, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted when 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. A 70 percent disability 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 work-like setting); inability to establish and maintain effective relationships. Finally, a 100 percent disability rating is warranted 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. 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. The use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. As discussed below, following a review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to an initial disability rating in excess of 30 percent for primary insomnia for the entire period on appeal. Private treatment records from April 2013, just prior to the Veteran’s claim on appeal, document his reported history of insomnia, nightmares, night sweats once per week, irritability/anger issues, and intrusive memories related to an airplane crash during active service. Upon mental status examination, the examiner described the Veteran as appearing alert and oriented, with normal appearance, depressed mood, without any thought process/content impairment, or suicidal/homicidal ideation. He was assessed with anxiety disorder, not otherwise specified, and was noted to experienced psychiatric symptoms of reexperiencing, hyperarousal, and avoidance which caused impairment in occupational and family functioning. VA treatment records from May 2013 document a VA psychology consultation, including a mental status examination which revealed that the Veteran was alert and oriented, with normal speech, conversation, memory, thought processes/content, concentration, judgment, and insight, but without any hallucinations, delusions, or suicidal/homicidal ideation. He was noted to be depressed and anxious, and was diagnosed with anxiety disorder, depressive disorder, and alcohol abuse. Thereafter, he was referred to a dual diagnosis PTSD/Alcohol Dependence research study, for which he received therapy and treatment from May 2013 through August 2013. Overall during this treatment, the VA psychologist described the Veteran as alert and oriented times four, dressed casually, good eye contact, clear, coherent, and relevant speech, mood was appropriate, thought content was within normal limits, and that the Veteran’s insight appeared good. These symptoms were consistently described throughout the study, which do not rise ot the level of occupational and social impairment with reduced reliability and productivity. In an April 2014 PTSD stressor statement, the Veteran reported that his in-service traumatic experiences resulted in nightmares, insomnia, and anger/irritability. Upon VA psychiatric examination in February 2015, the VA examiner diagnosed primary insomnia, with psychiatric symptoms including depressed mood and chronic sleep impairment, that resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner wrote that upon mental status examination, the Veteran appeared pleasant, cooperative, and well-groomed, with normal speech, affect, thought processes/content, judgment, and insight, but without suicidal/homicidal ideation or hallucinations. The Veteran reported chronic sleep problems since witnessing plane crashes during active service and stated that sometimes he would drink alcohol to cope with his insomnia. Notably, the probative evidence of record, including as discussed above, does not document that the Veteran’s psychiatric symptoms resulting from his service-connected primary insomnia have resulted in worse than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). In fact, the February 2015 VA examiner concluded that the Veteran’s psychiatric symptoms of primary insomnia were best summarized by no worse than occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication, which is the specific rating criteria for a 10 percent rating. While the adjudicator makes the determination of what evaluation is warranted for the Veteran’s service-connected primary insomnia, the examiner’s conclusion that the Veteran’s psychiatric disorder was best summarized by the criteria described under the 10 percent disability rating is evidence against a finding that the Veteran’s primary insomnia causes occupational and social impairment with reduced reliability and productivity. Additionally, in the Veteran’s submissions following the RO’s determination that a higher rating for primary insomnia was not warranted, he did not state upon what facts or symptoms he felt entitled to a higher rating. Rather, he checked the box on the notice of disagreement that he disagreed with the evaluation of the disability. His discussion in that document was about why he felt he was entitled to service connection for PTSD verus why he felt he was entitled to a higher rating for his service-connected primary insomnia. The substantive appeal also did not provide a reason or reasons the Veteran felt he was entitled to a higher rating. Indeed, the Board finds that for the entire period on appeal, the Veteran’s primary insomnia has not been manifested by symptoms of similar severity, frequency, and duration to those contemplated by the criteria for an increased 50 percent disability rating for any period on appeal. As the Veteran’s primary insomnia symptoms do not meet the rating criteria for a higher 50 percent disability rating, it follows that his service-connected psychiatric symptoms also do not meet the more severe rating criteria for an increased 70 or 100 percent disability rating for any period on appeal. Significantly, he has not shown the required severity of occupational and social impairment necessary for an increased 70 or 100 percent disability rating during the rating period, and his symptoms, as a whole, are not of similar severity, frequency, and duration as those particular symptoms associated with a 70 or 100 percent disability rating. Given the above, the Board finds that the preponderance of evidence weighs against an increased disability rating in excess of 30 percent for primary insomnia for the entire period on appeal. As the preponderance of the evidence is against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim for increase is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel