Citation Nr: 18159658 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-49 273 DATE: December 20, 2018 ORDER Service connection for residuals of a traumatic brain injury (TBI), to include headaches and problems with memory and concentration, is granted. Service connection for a vision disorder is denied. A rating in excess of 70 percent prior to August 30, 2012, and as of December 1, 2012, for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether the Veteran has current residuals of an in-service TBI, to include headaches and problems with memory and concentration. 2. The weight of the competent and probative evidence is against finding a vision disorder during the period on appeal. 3. The weight of the competent and probative evidence is against finding that the Veteran’s psychiatric symptoms result in total social and occupational impairment prior to August 30, 2012, or as of December 1, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of a TBI, to include headaches and problems with memory and concentration, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a vision disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to a rating in excess of 70 percent prior to August 30, 2012, and as of December 1, 2012, for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2001 to November 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2013 and September 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that although the Agency of Original Jurisdiction (AOJ) adjudicated the claims for headaches and problems with memory and concentration separate from the claim for TBI, the issues have been recharacterized to reflect the Board’s decision to grant service connection herein for headaches and problems with memory and concentration as residuals of an in-service TBI. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. 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). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Entitlement to service connection for residuals of a TBI, to include headaches and problems with memory and concentration. After review of the record, the Board finds that the criteria for service connection for current residuals of an in-service TBI, to include headaches and problems with memory and concentration, have been met. The Veteran contends that he suffered two in-service head injuries. The first occurred in March 2003 when he was assaulted by a fellow officer and punched several times in the face. The second occurred in 2004, during a deployment to Iraq, when a rocket or mortar landed 25 to 30 feet from the building he was sleeping in. Regarding the assault, the Veteran contends that the military did not want to pursue action against the assailant, so he was forced to make up a story about falling so that he could receive medical attention. A March 2003 treatment note demonstrates that the Veteran sought treatment for eye swelling, nose pain, and headaches, which he incurred when he “tripped” over an object and hit is face on a hard rubber cylinder. 12/10/2005, STR-Medical (quotation marks in original). Resolving the benefit-of-the-doubt in the Veteran’s favor, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran was assaulted in service. In any event, the evidence at a minimum demonstrates that the Veteran sought treatment for injuries to his head/face, and complained of headaches at that time. Service treatment records also include complaints of difficulty focusing and concentrating in March 2005. 12/10/2005, STR-Medical. A December 2008 treatment note reflects the Veteran’s report of difficulty concentrating and remembering. 02/25/2009, Medical-Government. The Veteran has consistently reported experiencing headaches and difficulty with memory and concentration on a continuous basis since the in-service head trauma. The Veteran underwent a TBI evaluation in February 2009 and the examining psychiatrist assessed a mild TBI and referred him for complaints of migraines and problems with memory and concentration. 04/28/2014, Medical-SSA. A June 2014 VA psychiatric examination includes an assessment of TBI. 06/09/2014, C&P Exam. A different VA examiner in June 2014 determined that an in-service TBI cannot be established based on the history and available service treatment records, and also found no current cognitive impairment. The Board notes that the VA examiner relied on a September 2003 post-deployment health assessment in which the Veteran denied headaches or difficulty remembering; however, the Veteran contends that the mortar attack occurred during his deployment to Iraq and the record does not contain a post-deployment health assessment following his Iraq deployment or a medical examination or report of medical history at the time of separation. The examiner also noted no current reports of subjective symptoms such as headaches, despite noting the Veteran’s complaint of current headaches. 06/12/2014, C&P Exam. Accordingly, the TBI VA examination is assigned less probative weight. A comprehensive private neuropsychological evaluation was received by VA in September 2015. Based on a neurocognitive examination and review of the relevant medical and lay evidence, the psychologist stated that the neurocognitive and neurobehavioral effects noted within the profile can be mostly accounted for the primary diagnosis of PTSD, but that there is also evidence to suggest that the two in-service events may have produced neurocognitive impairment that has been generally overshadowed by the variability and prominence of the PTSD features. In other words, symptoms of headaches and cognitive impairment could have been misattributed to PTSD. The psychologist provided diagnoses of PTSD; intracranial injury, unspecified; and cognitive disorder, NOS. 09/01/2015, Medical-Non-Government. In February 2016, a VA psychologist conducted an evaluation, and determined that the Veteran meets the criteria for a diagnosis of TBI under the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5). 08/13/2016, CAPRI. Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran experiences residuals of an in-service TBI, to include headaches and problems with concentration and memory. See 38 C.F.R. §§ 3.102, 3.303. The Board notes that this decision has not determined that the Veteran is necessarily entitled to more compensation based on this award. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In other words, to the extent the symptoms of headaches and difficulties with memory and concentration are contemplated by the rating assigned for PTSD, the Veteran may not be entitled to separate awards for residuals of TBI. This will be addressed by the AOJ in the first instance in implementing the rating assignment. 2. Entitlement to service connection for a vision disorder. After review of the record, the Board finds that the criteria for service connection for a vision disorder have not been met. The Veteran contends that he has vision problems associated with headaches. Specifically, he claims that he has blurred vision and spots in front of his eyes. 09/06/2013, VA 21-4138. The record does not demonstrate a diagnosed vision disorder. Without competent evidence of vision disorder during the period on appeal, the Board must deny the Veteran’s claim. The Board notes that to the extent the Veteran experiences problems with vision as a symptom of, or associated with, his service-connected headaches, his vision problems will be considered as part of the rating assigned for headaches. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Increased Rating 3. Entitlement to a rating in excess of 70 percent prior to August 30, 2012, and as of December 1, 2012, for PTSD. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert, 1 Vet. App. at 57-58. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159(a). The Veteran contends that he is entitled to a rating in excess of 70 percent prior to August 30, 2012, and as of December 1, 2012, for PTSD, evaluated under Diagnostic Code 9411. The Board notes that the Veteran is in receipt of a temporary 100 percent rating under 38 C.F.R. § 4.29 from August 30, 2012, to November 30, 2012, for a hospitalization in excess of 21 days. The Board further notes that the Veteran is in receipt of a 100 percent total disability rating based on individual unemployability (TDIU) due to PTSD, effective December 2, 2010. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. “A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-5. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The United States Court of Appeals for Veterans Claims (Court) has observed that the listed symptoms are examples of the type and degree of the manifestations of a mental disability required for a given disability rating, and that “the presence of all, most, or even some, of the enumerated symptoms” is not required to support a disability rating. Mauerhan, 16 Vet. App. at 442. Accordingly, it is not sufficient for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a veteran. Rather, “VA must engage in a holistic analysis” of the severity, frequency, and duration of the signs and symptoms of the veteran’s mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula, the criteria for a 70 percent rating are as follows: 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; obsessive 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); and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. The criteria for a 100 percent rating are as follows: 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 (ADLs) (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, own name. 38 C.F.R. § 4.130. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a rating in excess of 70 percent for PTSD prior to August 30, 2012, and as of December 1, 2012, is not warranted. A December 2012 VA examination indicates that the Veteran experiences anxiety; suspiciousness; chronic sleep impairment; difficulty concentrating; and restricted range of affect. At that time, the Veteran had recently relocated to the Homeless Emergency Program. He reported getting along with others in the program and keeping in contact with individuals from a PTSD treatment program, but noted that he felt distant from his entire family and remained separated from his spouse and children. Based on the examination, the examiner concluded that the Veteran’s psychiatric symptoms result in 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). 12/14/2012, VA Examination. At a December 2012 PTSD assessment the Veteran did not report mood symptoms other than those common to PTSD, such as difficulty concentrating and difficulty sleeping, and he denied problems with finding pleasurable activities or feeling hopeless. The note indicated prior hospitalizations, three of which were due to homicidal ideation during fights with his spouse; it is noted that temporary total ratings are current in effect for some of these hospitalizations. 01/04/2013, CAPRI. In May 2014, the Veteran underwent a private evaluation and reported anxiety, dysphoria, irritability, mood swings, panic attacks, agoraphobia, combat related flashbacks, initial insomnia, frequent nightmares, autonomic hyperactivity, social isolation, and angry outbursts with striking out at his estranged wife and children. The Veteran stated that there was no period without severe symptoms and that his symptoms have been consistent since April 2006. He reported trouble starting and finishing simple self-care and household tasks, and experiencing three panic attacks per week. A mental status examination indicated anxious, irritable, and dysphoric mood; confused thought processes; no suicidal or homicidal ideation; no hallucinations or delusions; poor concentration; limited insight; and intact judgment. The private psychiatrist determined that the Veteran’s psychiatric symptoms result in severe social and occupational impairment, to include due to frequent suicidal thoughts; impaired impulse control; an inability to adapt to stressful circumstances; and an inability to establish and maintain effective relationships. 10/03/2014, Medical-Non-Government. The Veteran underwent a VA examination in June 2014. Initially, the Board notes that the examiner found that the Veteran’s responses resulted in a profile with questionable validity due to some over-reporting (exaggerating) of psychiatric symptoms. The examiner noted the presence of anxiety; suspiciousness; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported panic attacks twice a week, and symptoms of irritability and difficulty concentrating. The Veteran did not exhibit tangential thinking, circumstantial thinking, loose associations, flight of ideas, incoherent thoughts, difficulty in understanding complex commands, or gross impairment in thought process or communication; the Veteran denied hallucinations or delusions; and no grossly inappropriate behavior was described or observed. The Veteran was married with two children, but was unable to hold a job due to arguments with supervisors. The examiner opined that the Veteran’s ability to follow instructions is not impaired, but that his ability to respond appropriately to coworkers, supervisors, or the general public is markedly impaired. Based on the foregoing, the VA examiner determined that the Veteran’s psychiatric symptoms result in 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. 06/09/2014, C&P Exam. In July 2014, the Veteran reported (and his spouse concurred) that his medication was not effective in treating his anxiety and irritability, but he denied significant depression. A mental status examination performed at that time was unremarkable. 09/09/2014, CAPRI. A June 2015 VA examination noted the presence of anxiety; suspiciousness; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported persistent and exaggerated negative beliefs or expectations about himself or others; persistent negative emotional state; persistent inability to experience positive emotions; feelings of detachment from others; irritable behavior with angry outbursts; and sleep disturbance. The Veteran denied reckless or self-destructive behavior. The mental status examination was unremarkable. He described experiencing panic attacks one to two times per week. At that time, the Veteran reported attending college full-time, studying residential wiring, and had not received a grade lower than a “B.” Regarding his social life, he reported that he was looking to get out of his marriage, got along with his children for the most part, remained in contact with one sibling, and did not have any friends or interest in socializing. 06/09/2015, C&P Exam. A July 2015 psychiatric evaluation mostly mirrors the May 2014 private psychiatric evaluation by the same psychiatrist. 11/04/2015, Medical-Non-Government. In January 2016, the Veteran reported that he does not go out of the house. 01/20/2016, Statement. His spouse reported that he has no friends because is unable to get along with others. 01/20/2016, Buddy Statement. In February 2016, a private psychologist found the following symptoms to be present: depressed mood; anxiety; chronic sleep impairment; mild memory loss; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; inability to establish and maintain effective relationships; and impaired impulse control. Based on the Veteran’s neurocognitive symptoms, the psychologist opined that the Veteran has occupational and social impairment with deficiencies in most areas. 02/26/2016, Other. In a March 2016 disability benefits questionnaire (DBQ), a private psychiatrist indicated the following symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; inability to establish and maintain effective relationships; suicidal ideation; impaired impulse control; grossly inappropriate behavior; persistent danger of hurting self or others; neglect of personal appearance or hygiene; and intermittent inability to perform ADLs. The psychiatrist determined that due to PTSD, the Veteran has total occupational and social impairment, and requires aid for simple survival. 03/18/2016, Other. The Board notes that the examiner did not provide a factual basis or rational to support his findings. The Board notes that the Veteran was enrolled in a VA vocational rehabilitation assistance program from November 2015 until April 2018 to obtain a Bachelor of Science in construction management from Everglades University-Sarasota. 11/25/2015, Notification; 04/04/2018, Notification. In July 2016, the Veteran reported that his service-connected disabilities were stable, that he was following up on medical appointments, that there were no real concerns, and that he was in good standing with the school. 08/09/2016, Email. The Veteran’s continued enrollment in the program weighs against finding total social and occupational impairment, and calls into question the credibility of the Veteran’s statement that he does not leave the house, and the validity of the findings contained in the March 2016 DBQ, including that the Veteran has agoraphobia, requires aid for simple survival, and has intermittent inability to perform ADLs. Mental status examinations in June and July 2016 were unremarkable. In July 2016, the Veteran reported progress with school, and that his relationship with his daughter is better. 08/13/2016, CAPRI. The Board has engaged in a holistic analysis of the severity, frequency, and duration of the signs and symptoms of the Veteran’s psychiatric disability, but finds that his mental health symptoms do not more nearly approximate a 100 percent rating. In fact, the Veteran’s symptoms of depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; inability to establish and maintain effective relationships; suicidal ideation; and impaired impulse control are specifically contemplated under the rating criteria for a 70 percent (or lower) evaluation. See 38 C.F.R. § 4.130. In finding that the weight of the competent evidence does not support a finding of total occupational and social impairment, the Board has also considered as a factor that the evidence does not indicate persistent delusions or hallucinations; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130. Further, the Board finds that the weight of the competent and probative evidence is against finding gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; neglect of personal appearance or hygiene; or intermittent inability to perform ADLs. Although these symptoms were indicated by the private March 2016 DBQ, they were not found to exist in numerous mental status examinations, three VA examinations, or three private evaluations, including one only one month prior to the March 2016 DBQ. Additionally, such findings are not supported by other evidence of record. As noted, in June and July 2016, a few months after the March 2016 DBQ, the Veteran reported that he was successfully progressing in his pursuit of a degree in construction management, which he remained enrolled in until at least April 2018. Thus, total inability to function has not been shown. The Board acknowledges the severe symptoms demonstrated throughout the rating period on appeal, but finds that such has been contemplated by the currently assigned 70 percent rating. In summary, the Board finds that a 100 percent rating is not warranted for PTSD because the weight of the competent and probative evidence is against finding that the Veteran’s psychiatric symptoms result in total social and occupational impairment. See 38 C.F.R. § 4.130. To the extent that PTSD symptoms preclude gainful employment, such impairment is contemplated by the award of TDIU, which has been in effect for the entirety of the period on appeal. All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive a higher or separate rating for PTSD. See 38 C.F.R. § 4.130. Indeed, when a disorder is listed in the Rating Schedule, rating by analogy is not appropriate. Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015). The Board notes that the benefit of the doubt has been applied, where applicable. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel