Citation Nr: 20002500 Decision Date: 01/14/20 Archive Date: 01/10/20 DOCKET NO. 18-42 361 DATE: January 14, 2020 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date prior to November 27, 2015, for grant of service connection for PTSD is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. Throughout the rating period on appeal, the occupational and social impairment from the Veteran’s PTSD has been manifested by reduced reliability and productivity; the record shows difficulty, but not inability, in establishing and maintaining effective work and social relationships and does not show deficiencies in most areas. 2. Prior to November 27, 2015, there was no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.125, Diagnostic Code 9411 (2019). 2. The criteria for an effective date prior to November 27, 2015, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps (USMC) from October 2002 to October 2006. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from February 2016, December 2016, and August 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Philadelphia, Pennsylvania. Increased Rating – PTSD The Veteran asserts that she should have a higher rating for her PTSD because her PTSD is worse than contemplated by the currently assigned rating. At a December 2015 VA examination, the Veteran reported she lived alone and was currently dating but not in a long-term relationship. She reported significant trust issues, and she tended to be irritable and blow up. She reported having 5 close friends and several “associates.” She enjoyed occasionally going out to the movies, sightseeing, going to lounges, and traveling. She spent time at home watching television and going to the gym. She began taking Zoloft, which decreased her desire to go to the gym and then she tended to want to stay home and “not really want to do anything.” She was employed at the Miami VA Medical Center, and reported she was “somewhat pleased with her occupation.” She preferred to be busy at work, and that she had no history of work-related admonishments. She reported agitation at work, but no behavioral aggression or negative social interactions. Prior to working at the Miami VA Medical Center, she was employed at the Washington DC VA Medical Center. She had a master’s in business administration (MBA). She used alcohol 3 times a month, and that during social occasions she may drink up to 12 to 14 drinks in one sitting. She endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Upon mental status examination, the Veteran oriented to all spheres. Her affect was congruent with stated mood and symptoms. She was relatively calm and responsive. Her speech was of normal rhythm and content. She maintained focus on topics and responded appropriately to questions. There was no evidence of a formal thought disorder. Insight and judgment were grossly intact. Active suicidal ideation, planning, and intent were denied. The Veteran was deemed capable of managing her financial affairs. A March 2016 VA treatment record indicates that the Veteran reported “significant ambivalence regarding taking psychotropic medication.” She denied current substance abuse or alcohol use, but acknowledged periods of binge drinking that she attributed to managing her anxiety. She had a support system consisting of several close friends and her mother. She indicated that her symptoms primarily impacted her interpersonal functioning. She had no legal problems. She reported a significant reduction in psychiatric symptoms. In another March 2016 VA treatment record the Veteran denied further issues with sleep and denied nightmares. She had removed “negative people from her life,” and felt very good. She reported going to the gym regularly that was helpful in decreasing negative energy. She reported irritability and angry outbursts continued to be problematic, and have somewhat increased in the past few months. She denied feeling down or depressed. She described her relationship with her mother was improving. She denied alcohol use during the week, but indicated she would drink up to 10 drinks on the weekends. An April 2016 VA treatment record indicates the Veteran described feeling more anxious overall. She reported having 2 nightmares that were service related, but not trauma related. She had down moods and was irritable. She did not have significant depression for more than a day, and did not have intrusive thoughts. She denied alcohol use. At a November 2016 VA examination, the Veteran reported that she lived alone, was not partnered, and did not have any children. She was not close to her father or siblings, and her mother was her closest source of support. She reported historical thoughts of suicide without plan or attempts, and denied inpatient psychiatric admissions. She denied any involvement with the legal system. She had always been a social drinker, but that within the last year she was engaging in heavy alcohol consumption with tolerance, and drinking as much as 14 drinks without a problem. She had never smoked or had any recreational drug use. She denied a family history of mental health disorders and substance abuse. She stated that in June 2016, she began participating in CrossFit and added running 3 times per week to help “blow of some steam,” and help with focus. She recently found out her mother had postural hypertension and plaque in her brain, and was worried about her mother’s health. The examiner diagnosed PTSD. Upon mental status examination, the Veteran endorsed the following symptoms: anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted the Veteran was alert, pleasant, calm, cooperative, with a tense mood, congruent affect, her speech was fluent and goal-directed, and there was no evidence of a thought disorder. The examiner noted the following symptoms were attributable to her PTSD: fear over her mother’s health condition, irritability, nightmares, and feeling always on alert especially in crowds. The Veteran was capable of managing her financial affairs. The examiner noted that the Veteran needed to seek follow up treatment based upon the examination. She did not appear to pose any threat of danger or injury to self or others. The examiner opined that the Veteran’s PTSD manifested by 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. In her December 2016 Notice of Disagreement (NOD), the Veteran reported the following symptoms of her PTSD: occupational and social impairment that resulted in not going out with friends; having limited friends that she trusted; trust issues with all people including her family; avoidance of people, places, thoughts, feelings, or activities; the need to drink when being social; taking sleep medication; 3 to 4 hours of sleep a day; dosing off at work; social impairment because of self-body issues due to mental health conditions; intrusive memories that were recurrent, unwanted distressing memories of the traumatic events, reliving the traumatic events as if they were happening again (flashbacks), upsetting dreams about the traumatic event, severe emotional distress or physical reactions when being reminded of the events; negative changes in thinking and mood; negative feelings about herself and other people; inability to experience positive emotions; feeling emotionally numb; lack of interest in activities once enjoyed; hopelessness; memory problem, including not remembering important aspects of the traumatic event; becoming disoriented at times; difficulty maintaining close relationships; changes in emotional reactions; irritability, angry outbursts or aggressive behavior; anxiety that made her feel constantly on edge, and requiring daily anxiety medication; always being on guard for danger; overwhelming guilt and shame; overwhelming survivor’s guilt; self-destructive behavior, such as drinking too much or driving too fast; trouble concentrating; trouble sleeping; being easily startled or frightened; arousal; hyper-reactivity; agitation; state of constant wakefulness and alertness; hypervigilance; acting irritable or aggressive; recklessness; sleep disturbances; difficulty concentrating; and having close calls with violence due to her hypervigilance. In a January 2017 statement, the Veteran reported that when she was properly screened for PTSD symptoms, her symptoms grew to be stronger and affected areas of her life in relationships, emotional reactions, social relationships, sleep, and negative changes in thinking and mood. A February 2017 VA treatment record reflects the Veteran’s report that she was doing better overall with anxiety. She attempted to go out more, and had asked a friend to help her. She endorsed episodic anxiety and a down mood, and felt less stressed on the medication prescribed but was asking for alternate medication options. She reported nightmares and hypervigilance at times, was doing well at work, and worried about her mother’s health. She wanted to move closer to Tampa because Miami did not feel like it was home, and that made her more depressed. A January 2018 VA treatment record indicates the Veteran’s reported symptoms of interrupted sleep; loss of interest in most activities; feelings of inadequacy or guilt; social withdrawal; and decreased productivity. In response, in February 2018, her doctor replied that the Veteran was having “difficulty adjusting to several very important issues in her life,” and that her symptoms “range across several [mental health] diagnosis [sic].” At a January 2018 VA examination, the Veteran reported she had been engaged since November, and described the relationship with her same sex partner as “amazing.” She lived alone, and her partner lived in Ocala. She stated she saw her fiancée once a month. She did not have any children. She reported being close to her mother, did not have a close relationship with her 2 older sisters, and was slowly reconnecting with her father. She reported she had a handful of close friends from the military. She did not have close friends at work or in Miami, where she resides. At work she put on a mask so that people would think she was “happy and bubbly.” She was not a member of any community organizations or clubs. She continued to exercise, enjoyed photography, and was trying to look into traveling to “pull [herself] out of [her] shell.” She reported she spent the majority of her free time at home watching television or playing video games on her phone. She was employed full-time at the Miami VA Medical Center, and denied disciplinary problems at work. She reported that at time she would be come frustrated and may get into “heated discussions” with coworkers but never had any incidents at work. The examiner diagnosed PTSD, and noted that the Veteran was consuming alcohol beyond healthy limits and that further monitoring was warranted. However, it did not appear to meet the diagnostic criteria for a substance abuse disorder. The examiner referenced a January 2018 VA treatment record that noted increased anxiety and depressed mood, with emotional crying periodically. The Veteran had reported feeling overwhelmed, and having intrusive memories, nightmares, and increased anxiety. She reported she was staying away from people in general, had a persistent and exaggerated negative/distorted beliefs, markedly diminished interest or participation in significant activities, and a persistent inability to experience positive emotions. She reported irritability, difficulty concentrating, and difficulty falling and staying asleep. The Veteran described significant anxiety related to her current life situations that caused anxiety. She endorsed the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted the following symptoms: anxiety, to include physical manifestations of heart palpitations, being easily frustrated, shortness of breath, sweat; muscular tension; depressed mood; tearfulness; nightmares; anhedonia; irritability’ anger outbursts (verbal and inanimate objects such as punching walls); easily frustrated; chronic ruminations, and was having current difficulty controlling the worry; hypervigilance; very situationally aware; having some feelings of hopelessness and worthlessness; social isolation; avoids discussing or talking about trauma events; and being occasionally distracted at work. She denied general concentration difficulties at work, and denied having an exaggerated startle response. She described her energy as “good.” She described her appetite as eating at most 2 meals, and that she was having some difficulty adjusting to “weight issues,” and that she was trying to eat healthier. She stated she slept 7 hours with an over the counter sleep aid, with occasional interrupted sleep due to nightmares and back pain. She had occasional daytime napping of 1 to 2 hours. Her sleep latency was approximately 30 minutes. She noted her sleep was not usually restorative. She denied any legal and behavioral history. She reported she had a glass of alcohol daily, and on the weekends would consume 4 to 5 alcoholic beverages. She stated when she felt stress, she would increase her alcohol intake. Upon mental status examination, examiner noted she was 15 minutes tardy due to traffic issues and was apologetic. She was oriented to person, place, time, and purpose of visit. She appeared alert, appropriately groomed and attired. She had good eye contact, was appropriate, friendly, and pleasant. Her speech was within normal limits. Her attention and concentration were normal. She had psychomotor restlessness (legs were fidgeting). She had no delusional mentation noted. Her thought process was goal-directed and linear. Her mood was mildly anxious. Her affect was congruent with ideation, and appropriate to the situation. There were no suicidal or homicidal ideation reported or evidenced at that time. She reported fleeting, transient death wishes but adamantly denied active suicidal ideation, plan, or intent. Her memory was grossly intact. She had adequate insight and judgment, She denied perceptual disturbances. She was capable of managing her financial affairs. The examiner opined the Veteran’s PTSD manifested by 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. An April 2018 VA treatment record indicates the Veteran reported that she was not doing well overall, and that she most recently had a verbal confrontation with her fiancée. At that time, she stated that she should “just put a gun to my head,” but relayed that she did not actually want to die or kill herself. She reported she was “just frustrated,” and that the police were called to the scene. She stated she was in the process of quitting her job and moving closer to her fiancée, and that she was ambivalent about quitting work and not being independent. However, she felt her move may be helpful to decrease her anxiety. She reported nightmares, increased anxiety, staying away from people in general, persistent and exaggerated negative/distorted beliefs, markedly diminished interest or participation in significant activities, persistent inability to experience positive motions, irritability, difficulty concentrating, difficulty falling and staying asleep, and weight gain. She described significant increase in irritability, and an ongoing issue with her fiancée and argument that led to shouting. In a July 2018 VA treatment record the Veteran reported some suicidal ideation without intent. She reported that her PTSD symptoms worsened significantly over the last 2 months. She felt anxiety, hypervigilance, irritability, and being emotionally detached. She felt she was overly emotional and cried for no apparent reason. Her headaches had been more frequent, which she attributed to her increased anxiety. She was sleeping 7 hours per night, but that she had more frequent nightmares in the prior 2 weeks. She reported experiencing panic-like episodes, that lasted 24 hours, and felt her heart was racing and could not relax. She reported her fiancée and coworkers had noticed a change in her; she was more distant and isolated. She reported brief suicidal ideation without intent or plans, and reported she was usually able to distract herself quickly. She felt the suicidal thoughts were a manifestation of her feeling overwhelmed and hopeless, but was currently confident in her ability to combat those thoughts. A February 2019 VA treatment record indicates the Veteran reported she was adhering to her medication regimen. She reported she felt her PTSD symptoms had been intensifying the last few weeks, and was unable to identify a specific precipitating factor. She admitted her stress level at work had been higher lately. She had been experiencing more frequent nightmares, and on two occasions she experienced what were likely hypnopompic hallucinations with sleep paralysis. She reported continued feelings of hypervigilance and anxiety in public, with a desire to avoid and isolate. She denied feeling persistently depressed, but struggled with intermittent anhedonia. She denied having any thoughts or plans of self-harm, but did admit to experiencing moments when she felt overwhelmed and hopeless. However, she stated she was able to distract herself and quickly think of realistic and healthy solutions to her problems. She stated she acquired 6 hours of sleep per night. She denied alcohol or illicit substance abuse. At a March 2019 VA examination, the Veteran reported no significant changes regarding social and family history since her last examination. She reported she was employed as a program specialist at the VA, and had an MBA degree. She reported she had a history of PTSD. She did not have any current prescribed medications at the time of the appointment. She denied family mental health history. She stated she did not have any reported legal and behavioral history since her las examination. She reported she socially drank alcohol. Upon mental status examination, the Veteran endorsed the following symptoms: depressed mood, and anxiety. The Veteran arrived at the appointment on time, was cooperative, and motivated to participate in the evaluation. She reported significant symptoms of PTSD. The Veteran was capable of managing her financial affairs. The examiner opined the Veteran’s PTSD manifested by 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. An April 2019 VA treatment record indicates that the Veteran had started therapy sessions after her last visit, and they were going well so far. She felt motivated to engage in treatment. However, she admitted feeling anxiety about the process. She stated she had been feeling increasingly anxious and hypervigilant in the past 2 weeks, after her vehicle had been burglarized. She stated the situation was triggering for her, especially given that it occurred in her apartment building. Her sleep had been more fragmented. She felt more irritable. She denied experiencing suicidal ideations or having any plans of harming herself. However, she admitted that she sometimes felt she would be better off dead, especially after engaging in arguments with her significant other. She emphasized having no intentions of self-harm and that she wanted to work on eliminating this train of thought. A May 2019 VA treatment record indicates the Veteran reported she was doing well. Her medication regimen had been increased, and she felt had led to less irritability and less anxiety. She stated she was more laid back, and was pleased with that change. Although her physiological reactions to triggers and stressors had improved, she was still struggling with the psychological component. She still worried about being attacked in public or her home being broken into. She also still felt hypervigilant and tended to scan her environment. She had recently stopped therapy and felt it was “not the right time.” She stated she felt too preoccupied at work to participate in therapy at that time. She felt she was sleeping fairly well, and usually acquired 5 to 6 hours of sleep per night. She experienced nightmares a few times a week, which usually led to her checking her home. She had difficulty re-initiating sleep after nightmares. She felt that having her dog in her home helped her sleep better. She denied feeling persistently depressed, but still had her “moments” when she felt down, usually after an argument with her significant other. She admitted that she experienced thoughts of passive death after arguments, but these were transient. She usually took her dog for a long walk and felt better. She denied experiencing suicidal ideations or having any plans to harm herself. She was looking forward to eventually moving in with her fiancée and being closer to her mother. She did not have psychosis, mania, hypomania, or severe cognitive deficits. She lived alone, had a dog, and was engaged. She worked full time at the VA. In considering the above evidence, the Board finds that the Veteran is not entitled to an initial rating in excess of 50 percent for her PTSD for any portion of the rating period on appeal. The evidence of record shows that, at worst, the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. She did not exhibit occupational and social impairment with deficiencies in most areas. Rather, she continued to be employed and to have at least one close friend throughout the appeal period, she worked out at the gym and she had interests in photography and travel. While not close with her sisters, she had a close relationship with her mother. Further, she became engaged during the appeal period and while she described arguments with her partner on at least one occasion she described the relationship as “amazing.” Additionally, while the record reflects suicidal ideation at times, as well as binge-drinking, there is no evidence that these thoughts and behaviors resulted in impairment occupationally or professionally, beyond that already contemplated by her current 50 rating. She referenced job stress at times and this is deemed reflected in the 50 percent evaluation already in effect, as are the other symptoms described throughout the record. While it is certainly conceivable that in some cases the symptoms shown here could result in deficiencies in most areas, such has not been shown on the facts of this case. This conclusion is also supported by all of the examiner’s findings on 4 different occasions throughout the appeal period. Indeed, all examiners found the disability picture most consistent with 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. Again, this conclusion was reached at each examination, following a review of the record and an interview with the Veteran. For these reasons, such assessments are deemed highly probative. No other competent evidence refutes these assessments. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that a preponderance of the evidence is against the claim and entitlement to an initial rating in excess of 50 percent for PTSD is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Earlier Effective Date – Service Connection for PTSD The Veteran asserts that she is entitled to an effective date prior to November 27, 2015, for the grant of service connection for PTSD. Specifically, she has asserted that her effective date for grant of service connection for PTSD should be June 2007. In that regard, the Veteran contends that she was not properly screened for PTSD, and that she was eventually diagnosed with PTSD in February 2015. See January 2017 NOD. By way of history, The Board notes that in June 2007, the Veteran submitted a VA Form 21-526 Veterans Application for Compensation and/or Pension, and indicated she was seeking entitlement to service connection for chest pains and anxiety. The Veteran’s claim of service connection for anxiety was denied in a June 2008 rating decision. The Veteran did not appeal that decision, and it became final. Then, in November 2015, she filed a claim for entitlement to service connection for PTSD, secondary to anxiety disorder. That November 2015 claim included claims for major depression and a claim to reopen her claim for anxiety. In her November 2015 claim, the Veteran specifically indicated that PTSD was a “new claimed disability.” In a February 2016 rating decision, the Veteran was granted entitlement to service connection for PTSD, effective November 27, 2015. Those facts are not in dispute. The effective date of service connection will be the later of the date of claim and the date entitlement arose when the claim is received more than one year following separation from service. 38 C.F.R. § 3.400 (2019). In this case, the claim of entitlement to service connection for PTSD was not received prior to November 27, 2015. In that regard, the Board notes the Veteran specifically indicated that her claim for entitlement to service connection for PTSD was a new claim in November 2015. Further, a December 2016 Notice of Disagreement submitted by the Veteran indicated that she “applied for a disability benefit rating on November 27, 2015, that included her claim for PTSD. The Board acknowledges that there is an indication from the record that the Veteran had PTSD before she filed her claim of entitlement to service connection for such. In that regard, the Veteran stated she had been treated for mental health symptomatology and diagnosed with PTSD with symptoms of general anxiety. Therefore, the date of receipt of claim is the appropriate effective date as it is later than the date entitlement arose. Accordingly, the Board finds that the claim for an earlier effective date for the grant of service connection for PTSD must be denied. REASONS FOR REMAND The Board finds that additional development is required before the remaining claim on appeal is decided. Service Connection - GERD The Veteran has consistently asserted that she has GERD that is related to her active service. Specifically, the Veteran has asserted she developed GERD as a result of taking her PTSD medication and/or knee pain medication; and that was her GERD was caused by, or chronically worsened by her PTSD. In that regard, the Veteran asserts that severity of her PTSD caused hyper acidity and a change in her eating habits, leading to GERD. The Board notes that the Veteran was afforded a VA examination for her claimed GERD in January 2019. At that time, the examiner opined that the Veteran’s GERD was less likely than not as a result of the Veteran’s service-connected knees and/or psychiatric disabilities. In that regard, the examiner noted that current medical literature did not support a causal nexus between GERD and chronic NSAID use. The Board notes that the Veteran was afforded another VA examination for her claimed GERD in March 2019. At that time, the examiner opined the Veteran’s GERD was less likely than not as a result of the medication used to treat the Veteran’s service-connected left knee disability and/or PTSD. In that regard, the examiner noted is an exceedingly common condition which often has no preexisting etiology. Further, the examiner noted that neither PTSD nor NSAID use associated with chronic knee pain is a well-established etiology of GERD in medical literature. The Board finds the January 2019 and March 2019 VA medical opinions inadequate to decide the claim. In that regard, the examiners failed to adequately provide adequate supporting rationale for the conclusions reached; nor did the VA examiner provide a well-reasoned medical explanation; nor did the VA examiner adequately address the Veteran’s lay statements and contentions regarding the onset and continuity of her symptoms. Further, the examiners failed to adequately address whether the Veteran’s GERD is etiologically related to her active service, nor did the examiners adequately address the Veteran’s contentions that her PTSD symptoms changed her eating habits resulting in GERD. Accordingly, the Board concludes that the Veteran should be afforded a new VA examination in order to determine the nature and etiology of GERD. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, current treatment records should be identified and obtained before a decision is made with regard to the remaining issue on appeal. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s GERD. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that GERD is related to active service. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that GERD was caused by, or worsened by any service-connected disability. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and any opinions provided comport with this remand, and undertake any other development found to be warranted. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.