Citation Nr: 19129158 Decision Date: 04/16/19 Archive Date: 04/15/19 DOCKET NO. 14-04 165 DATE: April 16, 2019 ORDER A rating in excess of 70 percent for posttraumatic stress disorder (PTSD), to include a rating in excess of 50 percent prior to August 24, 2016, is denied. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for a thoracolumbar spine disorder is remanded. Service connection for a bullet/shell fragment wound is remanded. FINDINGS OF FACTS 1. Prior to August 24, 2016, the Veteran’s psychiatric disability was productive of occupational and social impairment with reduced reliability, but not worse. 2. After August 24, 2016, the Veteran’s psychiatric disability was productive of occupational and social impairment with deficiencies in most areas, and symptoms such as anger outburst, irritability, and impaired impulse control. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD earlier than August 24, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to September 1992. He also has other periods of service from September 1989 to September 1997. The Veteran testified before a Veterans Law Judge at a Board hearing in August 2018. This matter is on appeal from an April 2012 and a November 2016 rating decision. Increased Ratings The Veteran was granted service connection for PTSD, with an initial 50 percent rating assigned as of the date his claim was received, March 11, 2011. His rating was increased to 70 percent as of August 24, 2016. The Veteran has challenged the ratings assigned. Under the Diagnostic code 9411, a 50 percent disability rating is assigned where a psychiatric disability causes 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 assigned where a psychiatric disability causes 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; intermittently illogical, obscure, or irrelevant speech; 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 inability to establish and maintain effective relationships. The maximum schedular disability rating of 100 percent is assigned where a psychiatric disability causes 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. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Because 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, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, as 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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Evaluation in excess of 50 percent for PTSD prior to August 24, 2016 By way of history, the Veteran filed a service connection claim for PTSD that was received in March 2011. He was granted service connection at a 50 percent rating. He timely filed a Notice of Disagreement, asserting that his psychiatric symptomatology warranted a higher rating. The record shows that due to his reported symptoms, the Veteran and his wife attended family therapy sessions in 2011. It was reported that he was easily agitated and anxious when in crowded areas. His wife stated that the Veteran would rather stay home and often relied on strategies to tolerate his discomfort. The reports noted that the Veteran’s mood varied from depressed to positive. Many times, the Veteran expressed his willingness to work on learning coping strategies. During his May 2011 session, the Veteran expressed some suicidal ideations. However, overall, the Veteran mostly denied suicidal attempts and did not demonstrate any homicidal risk. While he admitted to increased consumption of alcohol to deal with his symptoms, he denied being aggressive with his children. The Veteran’s VA treatment records from July 2011 show that he reported on time for his appointments. He was usually casually dressed, exercised decent grooming and hygiene practices. His mood was depressed, and his affect was guarded. While he maintained eye contact, he became tearful at times. His thought content was dysphoric. By August 2011, the Veteran was observed to have shown improved symptoms. He was dressed casually and was properly groomed. His mood was even, and his affect was appropriate. He maintained eye contact and his speech rate and volume were within normal limits. His thought process was linear, and his thought content was appropriate. VA mental health notes in 2012 showed that the Veteran’s mental status remained mostly unchanged. He attended his sessions and was dressed appropriately each time. His eye contact remained appropriate and his speech rate and volume were within normal limits. His thought process was linear, and his content was appropriate. There was no indication that the Veteran suffered suicidal ideations or homicidal thoughts. While the Veteran at times demonstrated irritability and anxiety, there was no showing of continuous panic, obsessive rituals, or obscure or illogical thoughts. In 2015, the Veteran continued to seek mental health treatment for his symptoms. It was noted that he often expressed and showed feelings of love towards his children. At the sessions, he was alert and engaging. His mood and affect were stable. There was no indication of hallucinations, delusions, suicidal, or homicidal ideations. In June 2015, the Veteran expressed his concern about not being able to control his anger if involved in a confrontation. In April 2016, it was noted that the Veteran had split with his wife. The split was amicable. He reported having a new partner, who he had been seeing since 2015. The Veteran also reported meeting with a weekly counselor to address is his symptoms. He reported he has had to go on temporary leave of absence from teaching in special needs due to his symptoms. At his August 2018 Board hearing, the Veteran testified that due to his psychiatric condition, he had engaged in physical conflicts involving guns in 2012. In his May 2017 Notice of Disagreement, the Veteran explained that his brother (a known drug user) initiated a violent confrontation, which resulting in them aiming guns at each other. A similar incident occurred again in 2014. A police report indicated that the Veteran told his wife to contact the police due to his own fear that he would kill his family. Upon his arrest, the Veteran was highly intoxicated and may have used marijuana. He was reportedly taken into custody without incident. The Veteran indicated that during this time period, he was employed at a grocery store but had episodes of panic due to many foreign customers. After that, he was employed at a few schools as a resource teacher, assisting children with basic math and reading. In support of his claim, the Veteran submitted an August 2018 letter from his private physician, finding the Veteran’s 2011 VA examination report erroneous and that the Veteran should have been rated at 100 percent during this period. However, the Board affords the report little probative weight. In arguing for 100 percent, the private physician placed much emphasis on the Veteran’s anger and irritability in classrooms, his ability to only trust his wife, inability to hold long-term employments, his preferred isolation, and, suicidal ideations, and hallucinations of faces. The Board notes that the physician conducted a review of the Veteran’s files but did not observe the Veteran himself. Contrary to the private report, the VA treatment reports compiled by the Veteran’s VA physicians are based on several years of first-hand observations of the Veteran and his family. Over the course of several years, the Veteran did not struggle hallucinations or delusions, as reported by the private physician. While there may have been one or two instances thoughts of suicide in 2011, the Veteran consistently denied such ideations and plans during his therapy sessions over several years. Thus, without referencing specific instances of symptoms, the Board affords the August 2018 private report less probative weight than the VA treatment reports that were completed contemporaneously with the provided treatment. The private doctor repeatedly emphasized that he felt that a 100 percent should have been assigned, but in no way did he explain why how the Veteran had total social impairment during this time when he was maintaining a marriage and helping to raise two children. Of note, he was the sole parent in charge during his wife’s work trips. After review of the Veteran’s new medical evidence, the Board finds that the Veteran’s PTSD symptomatology most closely approximated the criteria for the 50 percent rating prior to August 2016. While the Veteran did mention a thought of suicide in 2011, he consistently denied plans or further ideations. The record does not demonstrate majority of symptoms listed under the 70 percent criteria such as engaging in obsessive rituals, illogical and obscure speech, near-continuous panic, neglect of personal appearance, impaired impulse control, and spatial disorientation. The Board acknowledges the Veteran’s report of violent confrontation, his anger outbursts, and difficulty in employment. However, the impact of these symptoms is generally more congruent with the assigned disability rating than they would be with a higher rating during his period. Consideration has been given to assigning a higher disability evaluation during this period. However, the Board does not find that the Veteran is entitled to a 100 percent disability rating because the evidence does not indicate a total occupational and social impairment. While the Veteran did take leave of absence from his teaching position, he remained close with his children and even developed a relationship with a new partner. Evaluation in excess of 70 percent for PTSD from August 27, 2016 The Veteran’s disability was increased to 70 percent by a March 2017 rating decision, effective as of August 27, 2016. VA treatment record in 2016 show that the Veteran continued to seek psychiatric treatment for his PTSD symptoms. He reported attempts at practicing abstinence but acknowledged occasional drinking. He denied having suicidal and homicidal ideations. He did not exhibit any risk of self-harm or harm of others. At his family therapy session in 2016, the Veteran remained close to his daughter and impressed upon their close relationship. During the session, he was alert and was engaging. His mood was eutrophic. He was opened to discussing his future plans and even considered returning to school for higher education. While he was no longer married to his wife, his relationship with his children remained intact. In fact, the Veteran expressed that his children were moving with him. At his February 2017 VA examination, the examiner found that the Veteran’s psychiatric condition result in occupational and social impairment with reduced reliability and productivity. It was noted that the Veteran endorsed agitation, irritability, aggression, worthless feelings, feelings of hopelessness, decreased in appetite with weight loss. His other symptoms include depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, impaired judgment, impaired abstract thinking, disturbances in mood and motivation, suicidal ideations, neglect of personal appearance, impaired impulse control, difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances. While the Veteran’s symptoms appeared to have worsened, the examiner noted that the Veteran was alert and fully oriented to time, place, person, and situation. His eye contact was minimal, but his hygiene was fair. In his May 2017 Notice of Disagreement, the Veteran testified that he has a long history of lashing out and difficulty controlling his actions when angered. When he worked as a school teacher, he often had frequent outburst towards students, parents, and other teachers. Additionally, he suffers from anxiety and have moved several places as a way to cope with his symptoms. Upon consideration of the collective evidence of record, the Board finds that a rating of 100 percent is not warranted for this period as the evidence does not show that the Veteran is found to be totally occupationally and totally socially impaired. The Board notes that while the Veteran’s marriage dissolved, he remained close with his children and has detailed plans in moving with them. Furthermore, the evidence fails to show that the Veteran possess symptoms such as having gross impairment in thought processes or communication, persistent hallucinations, persistent danger to himself or others, or having memory loss for names of relatives or his own occupation. The Board does not doubt that the Veteran’s PTSD causes some social impairment, but the fact remains that a 70 percent rating contemplates an inability to establish and maintain effective relationships. As such, the aforementioned social contacts clearly preclude the assignment of a total schedular rating. REASONS FOR REMAND 1. Bilateral Hearing Loss The Veteran’s service connection claim for hearing loss is remanded for further development. It is the Veteran’s contention that he sustained bilateral hearing loss as a result of noise exposure in service, while serving as a combat engineer, which exposed him to hazardous noise such as explosions and loud equipment. It was noted in his service treatment records that the Veteran was routinely exposed to hazardous noise. Thus, the Board concedes the Veteran’s in-service noise exposure. Based on his September 2011 Disability Benefits Questionnaire, the Veteran did not demonstrate hearing loss for VA compensation purposes. At his August 2018 Board hearing, the Veteran stated that his hearing has worsened over the years and now has much difficulty hearing everyday conversations. Due to his assertion that his hearing has worsened, the Board finds that a new VA examination is warranted to assess the current severity of his hearing loss. 2. Service connection for a thoracolumbar spine disorder is remanded. The Veteran’s service connection claim for a thoracolumbar spine disorder is remanded for further development. The Veteran contends that he developed a thoracolumbar strain due to his military service. He specifically stated that during service, he was knocked off a tank and landed on his tailbone and lower back. He testified that the pain had persisted over the past 20 years since the incident. He reported being treated with several pain medication, injections, and rest. The Veteran was afforded a VA examination in August 2011 and was noted to have a lumbar and thoracic strain. There, the examiner noted that the Veteran injured his back when he spun off a turret of a tank in 1990. There was no surgery or hospitalization. He then reinjured it again and was treated for a neck pain in July 1991. There was no record of treatment for a back condition. An August 2011 x-ray revealed no fracture. Visualized joint spaces were normal and soft tissues were unremarkable. The VA examiner concluded that the Veteran’s current low back and mid back condition was most likely caused by the July 1991 in service injury. A VA examination addendum report was issued in March 2012. Contrary to the prior VA examination report, the examiner found that other than the July 1991 injury to the Veteran’s neck, there were no other recorded injuries to his back. Since the Veteran demonstrated no spinal abnormalities upon separation from service, the March 2012 VA examiner opined that the Veteran’s current thoracolumbar disorder was not related to his military service. Given the contradicting opinions, the Board finds that neither medical opinion is adequate and a new VA examination is warranted to address the etiology of the Veteran’s thoracolumbar spine disorder. 3. Bullet Wound and Shell Fragment The Veteran is seeking service connection claim for a shrapnel wound in his right abdomen. At his August 2018 Board hearing, the Veteran indicated that during service, he conducted a demolition involving heavy equipment and remembered being hurt by fragments and currently as a scar around the hip/groin area. He also suggested that the increased pain in his hip may be related to his back disability. There is some suggestion that the Veteran has a retained metal fragment in the right side, but it is unclear what the etiology of this is. Thus, the Board finds a new VA examination is warranted. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records relating to the Veteran’s claims. 2. Schedule a VA examination pertaining to his hearing loss. The examiner is asked to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hearing loss either began during or was otherwise caused by his military service? Why or why not? 3. Schedule a VA examination to determine the etiology of any thoracolumbar spine disorder. The examiner is asked to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s thoracolumbar spine disorder either began during or was otherwise caused by his military service? Why or why not? 4. Schedule a VA examination regarding the Veteran’s service connection claim for his shrapnel wound. The examiner should determine whether the Veteran has any retained shrapnel, and if so opine as to whether it is at least as likely as not (50 percent or greater) that the shrapnel was imbedded during service. Why or why not? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel