Citation Nr: 20008097 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 19-24 106 DATE: January 31, 2020 ORDER Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for right hand disability is remanded. FINDING OF FACT The Veteran’s PTSD has not manifested to 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. CONCLUSION OF LAW The criteria for an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1968 to October 1969. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R.§ 4.7. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a) (2019). When evaluating the level of disability from a mental disorder, VA also will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an Increased Rating: PTSD The Veteran’s service-connected PTSD is rated as 70 percent disabling under Diagnostic Code (DC) 9411 of the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411. Under DC 9411, 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. Id. 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. Id. In July 2018, the Veteran received a VA examination. The examiner noted the Veteran’s PTSD caused occupational and social impairment with reduced reliability and productivity. The Veteran reported that he still lived with his wife and that his relationship with her and his grandchildren was fine. He did report that his relationships were more difficult as of late due to his increased isolation. The Veteran reported his wife handled the finances and he helped with cleaning and cooking; however, his wife did more of the household chores. He reported spending his time working on cars, going to the community garden and taking care of vegetables, visiting his grandchildren, working on the land, and watching television. The Veteran reported he was in couples’ counseling with his wife. Symptoms the Veteran reported were wanting to isolate, angry outbursts, depression, anxiety attacks, hypervigilant, easily startled, decreased attention and concentration, intrusive memories and difficulty sleeping. The Veteran stated that when he has an anxiety attack, he loses it and has to move all the time to find something to do, that his chest gets tight and his mind goes blank. The Veteran denied any current suicidal or homicidal ideation. However, he did report suicidal ideation a month prior after many things went wrong and he felt worthless. He denied any intent or plan though. There was no evidence of hallucinations. Upon examination, the examiner noted the Veteran’s symptoms were depressed mood, anxiety, chronic sleep impairment, mild memory loss such as forgetting names, directions, or recent events, and difficulty establishing and maintaining effective relationships. The Veteran’s appearance was neatly dressed and well-groomed, his behavior was cooperative and attentive, his eye contact was good, his speech was normal, his mood was euthymic, his affect was mood congruent, and his thought process was linear, reality based, and goal directed. The Veteran was alert to person, place, time, and situation. His judgment and insight were fair. The Veteran was deemed capable of handling his financial affairs. VA treatment records show the Veteran attended couples’ therapy and individual mental health care visits. The Board notes that majority of the Veteran’s visits since 2017 have noted the Veteran reporting he was getting better and feeling good. In fact, in February 2018, the Veteran’s mood was noted as happy. In May 2018, the Veteran reported that couples’ therapy had really helped him talk to his wife, which in turn improved his mood and comfort level. Although in November 2017 the Veteran reported his mood was sad, the Board notes that it was due to the recent passing of people the Veteran was close with and he reported feeling better a few weeks after. After review of the evidence, the Board finds that a rating in excess of 70 percent is not warranted. The majority of the medical records shows that the Veteran’s symptoms have been primarily and consistently manifested by depression, chronic sleep impairment, hypervigilance, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and anxiety. The Board finds that the evidence of record does not support a rating of 100 percent at any time during the pendency of the appeal. While the Veteran prefers being alone and has some problems relating to others, he is not totally socially impaired, as he has maintained a relationship with his wife and his grandchildren. He further has stated he enjoys spending time with his grandchildren. The Veteran has also consistently been found able to handle his affairs, dress and groom appropriately, and have normal judgment. The Veteran continues to participate in his hobbies, as he reported that he continues to work on cars, work on the community garden and his land, and watch television. Further, the Veteran reported helping his wife with the cooking and cleaning. Thus, the evidence does not show that the Veteran has an intermittent inability to perform activities of daily living. The Board also notes that although the Veteran has sometimes endorsed suicidal ideation, he is not a persistent danger of hurting himself, as he has had no suicide attempts or any active thoughts or plans and has more often reported no suicidal ideation. The Board acknowledges the Veteran’s statements that he has angry outbursts; however, there has been no evidence of violence or irrational behavior, nor has the Veteran demonstrated that he was/is a danger of hurting others. Further, these occurrences do not appear to have grossly impaired the Veteran in his thought process/communication or caused grossly inappropriate behavior. The Veteran has shown no disorientation to time or place, or delusions or hallucinations, and has only suffered mild memory loss. Further, the Veteran is still able to perform minimal activities around his home and has actively worked on his relationship with his wife by attending couples’ therapy. Moreover, the evidence of record shows the Veteran has consistently reported that couples’ therapy has really helped him, to include improving his mood and comfort. He also reported in May 2018 having improved sleep and fewer nightmares. Thus, a 100 percent rating is not warranted. The Board also acknowledges the Veteran’s assertions that he is entitled to a higher rating because his symptoms are worse. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the Board has considered the Veteran’s statements and finds them credible and consistent with the rating assigned. Accordingly, the Board concludes that the preponderance of evidence is against the claim, and an evaluation in excess of 70 percent is not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Entitlement to Service Connection: Right Hand Disability The Veteran contends that his right hand disability is related to his active duty service. First, the Board notes that the Veteran reported that shortly after he was discharged, he went to the doctor for right hand pain and it was discovered he had shrapnel stuck in his hand, which resulted in surgery. However, the Board notes that these medical records are not part of the file and it does not appear attempts to retrieve such records have been made. Secondly, the Board finds that the Veteran has not been examined for his right hand disability. VA’s duty to assist includes providing a medical examination and obtaining an opinion when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (2019). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Here, the evidence of record shows the Veteran has been seen for right hand pain and swelling. Further, although his service records do not show a right hand injury or complaint of hand pain, the Board notes that the Veteran’s military personnel records show the Veteran was an infantryman and gunner in the Republic of Vietnam during a time of war, and the Board finds that being exposed to shrapnel would not be outside the scope of an infantrymen or gunner during a period of war. Therefore, the Board finds that a remand is required in order to obtain missing medical records and a medical examination with an opinion addressing and the nature and etiology of the claimed condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding VA and private treatment records relevant to the Veteran’s claimed condition. Specifically, make all attempts to retrieve the medical records from the Veteran’s hospital visit and subsequent right hand surgery shortly after separation. As needed, Authorization and Release forms should be obtained from the Veteran. All attempts to retrieve such records should be documented and made part of the file. 2. Once all outstanding records have been associated with the file, schedule the Veteran for an examination with the appropriate examiners to determine the etiologies of the Veteran’s right hand condition. The claims file should be reviewed in conjunction with the examination and a copy of this remand should be provided to the examiner. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right hand condition had its onset during, or is otherwise related to, his active duty service, to include his position as infantryman and gunner. A complete rationale for all opinions expressed should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he/she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, 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.