Citation Nr: 20072897 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 20-16 312 DATE: November 12, 2020 ORDER Service connection for traumatic brain injury (TBI) is denied. A schedular rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of TBI that is etiologically related to his military service. 2. At no time during the period on appeal has the Veteran’s PTSD caused him total occupational and social impairment; he has not demonstrated symptoms functionally equivalent to gross impairment in thought processes or communication, persistent danger of hurting himself or others, inability to perform activities of daily living (including maintenance of minimal personal hygiene), persistent disorientation to time or place, or severe memory loss. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for TBI have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for a schedular rating in excess of 70 percent 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 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1997 to June 2017. His decorations and awards include, without limitation, the Joint Service Commendation Medal with two oak leave clusters, the Air Force Commendation Medal with one oak leave cluster, the Air Force Good Conduct Medal with six oak leaf clusters, the National Defense Service Medal with one service star, the Armed Forced Expeditionary Medal with one service star, the Afghanistan Campaign Medal, the Global War on Terrorism Service Medal, the Armed Forces Service Medal, and the NATO Medal with one service star. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office. As an additional matter, the Board notes that in January 2019, the Veteran was issued a statement of the case addressing 24 disability claims. The agency of original jurisdiction (AOJ) failed to certify the Veteran’s appeal, claiming a “failure to respond.” However, the record reflects the Veteran did submit a timely substantive appeal via a February 2019 VA Form 9. As such, the AOJ should properly complete the adjudication of the Veteran’s February 2019 substantive appeal and, if they remain denied, certify those claims to the Board. 1. Entitlement to service connection for TBI The Veteran’s service treatment records detail the Veteran’s injury by a large bale of fencing wire during his first assignment. The record also contains in-service treatment for upper-, mid-, and lower-back pain. Indeed, the Veteran is service connected for thoracic and lumbosacral spinal injuries. He is also service connected for migraine headaches. The Veteran contends that he should receive service connection compensation for TBI residuals related to the fencing wire accident. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, in April 2011, the Veteran underwent a post-deployment review and interview. At the time, the Veteran’s TBI screening results were negative. During his retirement examination in January 2017, the Veteran specified numerous concerns, including back pain symptoms related to the fencing wire injury. With that said, the Veteran specifically denied having a head injury, memory loss, or amnesia. See January 2017 retirement medical report. In February 2018, the Veteran underwent private examination by Dr P.J.Y.—a licensed chiropractor. Dr. P.J.Y. diagnosed the Veteran with residuals of a TBI, stating that it is at least as likely as not that the condition was the result of his military service. See February 2018 report of consultation and examination. There is no indication that Dr. P.J.Y. reviewed the Veteran’s service treatment records in their entirety nor is there any indication that he, as a chiropractor, had the proper medical training to provide a diagnosis for a disability. (Here, the Board notes that VA examiners assigned to diagnosis of TBI usually have expert training in neurology, physiatry, or psychiatry). Dr. P.J.Y., described the Veteran’s symptoms but failed to offer adequate rationale in support of his opinion. As a result, the Board declines to afford probative value to the opinion of Dr. P.J.Y. on this issue. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Veteran also underwent a VA medical examination in February 2018 in which TBI was noted to be absent. See February 2018 VA PTSD examination. Most recently, in January 2020, the Veteran underwent a VA examination to evaluate his TBI claim. The VA examiner is a licensed physiatrist. The examiner reviewed the Veteran’s e-folder and performed an in-person examination. Based on the foregoing, the examiner concluded that the Veteran does not have TBI or residuals of a TBI. Furthermore, the examiner explained that the Veteran’s treatment records did not include complaints, diagnoses, or treatment for TBI. Moreover, the examiner opined that any current memory loss and disorientation symptoms were more likely attributable to the Veteran’s service-connected PTSD. See also January 2020 medical opinion. In March 2020, the aforementioned January 2020 VA examiner was asked to provide additional explanation and to address the treatment records that refer to an in-service head injury. The examiner explained that he had reviewed the claims file, noting that the Veteran self-reported his head injury and that treatment records detail back pain and tension-related headaches. Therefore, the examiner confirmed his earlier opinion that the Veteran did not have clinical symptoms of TBI or TBI residuals. Based on the explanations and medical training of the 2020 VA examiner., the Board assigns his opinions and reports substantial probative weight. Furthermore, it is clear that this VA examiner reviewed the Veteran’s case file and offered an opinion supported by an adequate medical rationale. After careful review, the Board finds that the preponderance of the evidence fails to support the Veteran’s claim. On at least two occasions, he specifically denied the existence of a head injury or residual symptoms suggestive of TBI. Furthermore, 2020 VA examiner’s opinion does not indicate the presence of an existing disability. Therefore, entitlement to service connection for TBI must be denied. 2. Entitlement to a rating in excess of 70 percent for PTSD The Veteran also claims entitlement to a rating in excess of 70 percent for his service-connected PTSD. The Veteran’s PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula For Mental Disorders, to include PTSD, a 50 percent evaluation is warranted for 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, and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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. Id. A 100 percent evaluation is assignable where 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); and disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency is to 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). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency is to 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). The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). The Board will consider whether the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, and, if so, the equivalent rating will be assigned. Id. A Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). To qualify for a particular disability rating, 38 C.F.R. § 4.130 requires “not only the presence of certain symptoms[‘] but also that those symptoms have caused occupational and social impairment” associated with the requested disability rating. Id. at 117; see 38 C.F.R. § 4.130, Diagnostic Code 9411. As noted in Vazquez-Claudio, the Federal Circuit explained that, although a Veteran’s symptoms are the primary consideration under § 4.130, “the regulation also requires an ultimate factual conclusion as to the Veteran’s level of [occupational and social] impairment.” 713 F.3d at 118 (emphasis added). Significantly, § 4.130 requires total occupational and social impairment to warrant a 100 percent rating for PTSD. Nicholson v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1229 at 14. In May 2018, the Veteran underwent a VA examination for evaluation of his PTSD. His symptoms included depressed mood, anger, irritability, suspiciousness, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, impaired impulse control, and the intermittent inability to perform activities of daily living. See February 2018 VA PTSD examination and report. At the time, he denied hallucinations or delusional thoughts. He denied homicidal or suicidal ideation. The examiner summarized the Veteran’s disability as 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. According to the May 2018 VA examination report, the Veteran has been married twice. He confirmed “good” relationships with his family members and “good” relationships with his co-workers. The Veteran has also submitted private examination findings by Dr. P.J.Y., the chiropractor who opined on the Veteran’s TBI and a number of other conditions. There is no indication that Dr. P.J.Y. has medical training in the field of mental health. Furthermore, the symptoms reported in his medical report align with those outlined by the May 2018 VA examiner. The Board finds that a rating in excess of 70 percent for PTSD is not warranted. At no point during the appeal period has the Veteran demonstrated gross impairment in thought processes or communication; he has not exhibited grossly inappropriate behavior; there has been no persistent danger of self-harm or harm to others; he has occasional spatial disorientation, but the record does not suggest regular disorientation to time and place; there is no indication of memory loss for the names of the Veteran’s close relatives, his own occupation, or his own name. More significantly, the 2018 examination findings were not indicative of total social impairment. The Veteran has held several jobs and claimed to have a good rapport with his coworkers. He is married with children and maintains a positive set of familial relationships. When considering the totality of all the evidence, the Veteran’s overall symptoms have not resulted or closely approximated total social and occupational impairment warranting a 100 percent disability rating. See Nicholson v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1229. The Veteran’s stable family relationships and regular social interactions do not align with a finding of total social impairment. Id. For the foregoing reasons, the Board finds that the Veteran’s claim for a rating in excess of 70 percent for his PTSD must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a left ankle condition is remanded. The Veteran’s early service treatment records indicate treatment for right knee pain with a popping sensation. See May 2006 radiologic examination report. It was not until June 2016 that the Veteran received in-service treatment for pain in the left leg. See June 2016 medical encounter with K.A.D. Medical records indicate left anterior leg pain secondary to a contusion from two weeks prior. See June 2016 radiology report. In September 2017, the Veteran underwent a knee and lower leg conditions examination. The claimed conditions, however, were related to his right knee, right leg, and bilateral shin splints. The examining physician did not provide adequate detail regarding any disability of the left lower extremity. In March 2018. the Veteran’s private provider, Dr. P.J.Y., diagnosed the Veteran with degenerative joint disease of the left knee and ankle. As opposed to his opinions about neurological and psychiatric disabilities, the Board finds the opinions of Dr. P.J.Y. to offer probative value—albeit minimal—with regard to the diagnoses and etiology of the Veteran’s left leg and ankle disabilities. As noted above, however, it is unclear whether Dr. P.J.Y. conducted a proper review of the Veteran’s case file. Furthermore, service treatment records indicate the presence of a contusion without structural damage to the Veteran’s left lower extremity. The Board finds that an updated orthopedic examination and opinion must be obtained for proper adjudication of the Veteran’s claims. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After completing the above to the extent possible, arrange to have the Veteran scheduled for a VA orthopedic examination of his left leg and left ankle. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, the examiner should provide an opinion with respect to any currently present disability of the Veteran’s left leg or left ankle. The examiner should also opine as to whether any present disability is at least as likely as not (i.e., whether it is 50 percent or more probable) that any such disability is etiologically related to the Veteran’s military service. A complete medical rationale should be included for all opinions provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be adjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. John Kitlas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, 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.