Citation Nr: 20021530 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-08 526 DATE: March 26, 2020 ORDER Entitlement to service connection for a headache disorder is denied. Entitlement to service connection for a sleep disorder is denied. A rating in excess of 30 percent for other specified trauma and stressor related disorder is denied. Entitlement to an effective date earlier than April 2, 2014, for the grant of service connection for other specified trauma and stressor related disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran had a current diagnosis of a headache disorder at any time during the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran had a current diagnosis of a sleep disorder at any time during the pendency of the claim. 3. For the entire period on appeal, the Veteran’s other specified trauma and stressor related disorder has been manifested by symptoms of the type and extent, frequency, and/or severity (as appropriate) that are indicative of no more than 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), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). 4. The VA received the Veteran’s original claim for service connection for PTSD on April 2, 2015; the Veteran was granted service connection for other specified trauma and stressor related disorder effective April 2, 2014. CONCLUSIONS OF LAW 1. The criteria for service connection for a headache disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a disability rating in excess of 30 percent for other specified trauma and stressor related disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9211. 4. The criteria for an effective date earlier than April 2, 2014, for the award of service connection for other specified trauma and stressor related disorder have not been met. 38 U.S.C. §§ 5103, 5103A, 5110; 38 C.F.R. §§ 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1966 to March 1969, and later served on active duty in the United States Army from July 1981 to July 1985. On appeal are several rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO): an April 2018 rating decision that denied service connection for a sleep disorder; a May 2018 rating decision that granted service connection for other specified trauma and stressor related disorder and assigned a 30 percent disability rating effective April 2, 2014; and, a November 2018 rating decision that denied service connection for a headache disorder. On appeal, the Veteran challenges the denial of service connection for a sleep disorder and a headache disorder; the 30 percent disability rating assigned for other specified trauma and stressor related disorder; and, the effective date of his award of service connection for other specified trauma and stressor related disorder. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. Also of record are VA examinations conducted in November 2015 and May 2017. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) 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 current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for a headache disorder. The Veteran claims he has headaches as a result of his military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. As there is no competent evidence of a current diagnosis of a headache disorder, the Board concludes that the preponderance of the evidence is against granting service connection. A review of the Veteran’s post service VA treatment records from the Portland VAMC reflects the Veteran had a recent complaint of a headache in August 2018, but there was no diagnosis or treatment specifically for headaches. There are no other records of a complaint, diagnosis or treatment of headaches. The Board acknowledges the Veteran’s report of headaches. However, in order to warrant service connection, the threshold requirement is competent evidence of the existence of the claimed disability at some point during a Veteran’s appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present 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... even though the disability resolves prior to the Secretary’s adjudication of the claim”); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case, while the Veteran is competent as a layperson to testify to symptoms he experiences, he has not demonstrated that he has the necessary skills, experience, or medical knowledge to diagnose a headache disorder; this is a complex medical question. Consequently, the Board concludes that the Veteran’s statements and opinions as to diagnosis and etiology are of little probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Because the competent evidence of record does not establish that the Veteran has a current diagnosis of a headache disability, the claim must be denied. 2. Entitlement to service connection for a sleep disorder. The Veteran claims he has a sleep disorder as a result of his military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. As there is no competent evidence of a current diagnosis of a sleep disorder, the Board concludes that the preponderance of the evidence is against granting service connection. A review of the Veteran’s post service VA treatment records from the Portland VAMC reflects the Veteran had complaints regarding poor sleep, but these complaints were treated as a symptom of his mental health disorders. There was no diagnosis or treatment specifically for a sleep disorder. For example, a July 2011 record reflects the Veteran complained he was sleeping much less than before. The Veteran was diagnosed with schizoaffective disorder and prescribed medication to take if not sleeping after 45 minutes. No separate diagnosis of a sleep disorder was assigned. The Board acknowledges the Veteran’s report of a sleep disorder. However, in order to warrant service connection, the threshold requirement is competent evidence of the existence of the claimed disability at some point during a Veteran’s appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present 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... even though the disability resolves prior to the Secretary’s adjudication of the claim”); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case, while the Veteran is competent as a layperson to testify to symptoms he experiences, he has not demonstrated that he has the necessary skills, experience, or medical knowledge to diagnose a sleep disorder; this is a complex medical question. Consequently, the Board concludes that the Veteran’s statements and opinions as to diagnosis and etiology are of little probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Because the competent evidence of record does not establish that the Veteran has a current diagnosis of a sleep disorder, the claim must be denied. 3. Entitlement to a rating in excess of 30 percent for other specified trauma and stressor related disorder. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. PTSD, schizoaffective disorder, and other mental disorders are rated using the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Codes 9211, 9411. Under the General Rating Formula, a 30 percent rating is warranted for 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), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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. A 70 percent 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 ideations; 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 the veteran’s personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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 the 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. Here, the Veteran seeks an increased rating for other specified trauma and stressor related disorder, currently rated at 30 percent. After review of the medical and lay evidence in this case, the Board finds that a disability rating in excess of 30 percent is not warranted. A VA examination was conducted in November 2015. The VA examiner indicated the Veteran had two current diagnoses: schizoaffective disorder, bipolar type, and other specified trauma and stressor related disorder. The examiner stated further that it is possible to differentiate what symptoms are attributable to each diagnosis; that nearly all symptoms are caused by the schizoaffective disorder; and that the symptoms of his other specified trauma and stressor related disorder are clearly shown to cause only avoidance of trauma related thoughts and triggers like war movies, difficulty remembering traumatic events, and anger when pressed to discuss trauma. The examiner noted the Veteran reported he is currently married to his wife of 45 years; that his marriage is good; and, that they live together with his adult son and daughter. He also reported he has an associate degree; that he had a career as a mill worker, cannery worker, and a case worker. The examiner opined that, after careful review of the Veteran’s claim file and other medical records, and conducting a thorough clinical interview, it is his professional opinion that the Veteran does not have PTSD but does have other specified trauma and stressor related disorder secondary to his combat experiences and fear of hostile military or terrorist activity; that his schizoaffective disorder is not related to his service or to his Other Specified Trauma and Stressor Related Disorder; and, that nearly all impairment is caused by his schizoaffective disorder. Another VA examination was conducted in May 2017. This VA examiner indicated the Veteran had just one current diagnosis: schizoaffective disorder. The examiner opined that the Veteran does not meet diagnostic criteria for PTSD or any other related disorders and that his current impairment is able to be appropriately and fully attributed to his diagnosis of Schizoaffective Disorder. A private mental health evaluation was conducted in June 2019. The examiner noted in her written report that the Veteran had two diagnoses: other specified trauma and stressor related disorder and schizoaffective disorder, depressive type. As it relates to the two diagnoses, this examiner stated it was not possible to differentiate what symptoms are attributable to each diagnosis. The examiner noted the Veteran struggled remembering basic information; his mood was anxious and nervous; his affect was restricted; he reported feeling anxious and depressed; and there was a report of overt hallucinations. The examiner also noted the Veteran had few friends; inability to keep a job; and occupational and social impairment. It was also noted he suffered from chronic sleep impairment, including insomnia and broken sleep. Lastly, the examiner noted the following symptoms: mild memory loss; impairment of short and long-term memory; difficulty establishing and maintaining relationships; difficulty adapting to stressful circumstances including work; disturbances of motivation and mood; near-continuous panic or depression affecting his ability to function effectively; impaired abstract thinking; neglect of personal hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. VA treatment records throughout the appeal period reflect findings consistent with the VA examiners. An August 2019 lay statement from the Veteran’s wife is associated with the Veteran’s case file. The wife stated the Veteran tried working several different jobs over the years without much success – the Veteran was not motivated, did not seem to care about supporting their growing family, and he was drinking and smoking marijuana from time to time. The Veteran’s wife also relayed several incidents she described as traumatic involving the Veteran’s hurtful actions toward his family members. An August 2019 lay statement from the Veteran’s brother is associated with the Veteran’s case file. The brother stated the Veteran stayed with him in 1996 for a while, after his mental breakdown. The brother described the Veteran as paranoid; unable to sit still; always on edge; and that his emotions were like a roller coaster, up and down and all around in seconds at a time. The brother also stated the Veteran had some memory loss and had not had the motivation or drive to work over the years. Based on the above, the Board finds that the currently assigned 30 percent disability is appropriate. The Veteran’s symptoms specifically associated with his service-connected other specified trauma and stressor related disorder are not shown to more nearly approximate occupational and social impairment with reduced reliability and productivity. Compellingly, the Board notes that both VA examiners found the majority of the Veteran’s symptomatology to be attributed to his non-service-connected schizoaffective disorder, with only mild symptoms associated with his service-connected other specified trauma and stressor related disorder. At most, these mild symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. As such, his level of symptomatology corresponds to no more than the 30 percent rating currently assigned. In so finding, the Board acknowledges that the June 2019 private evaluator stated that the Veteran’s psychiatric symptomatology could not be distinguished between the two diagnosed disorders. However, as discussed above, the Board finds compelling the fact that both VA examiners clearly differentiated the symptoms of the Veteran’s service-connected other specified trauma and stressor related disorder from symptoms caused by his non-service-connected schizoaffective disorder. The weight of the evidence supports the finding that the symptoms are clearly differentiable. The Board finds that a rating of 50 percent is not appropriate. This is so because the record does not reflect a time when the Veteran’s other specified trauma and stressor related disorder exhibited symptoms of the type, extent, frequency, or severity indicative of those identified as warranting a 50 percent rating, such 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. Thus, a 50 percent rating is not warranted for the Veteran’s other specified trauma and stressor related disorder at any point during the appeal period. The Board finds that a rating of 70 percent is not appropriate. This is so because the record does not reflect a time when the Veteran’s other specified trauma and stressor related disorder exhibited symptoms of the type, extent, frequency, or severity indicative of those identified as warranting a 70 percent rating, such as suicidal ideations; 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 the veteran’s personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Thus, a 70 percent rating is not warranted for the Veteran’s other specified trauma and stressor related disorder at any point during the appeal period. The Board further finds that a rating of 100 percent is not appropriate in this case at any point during the appeal period. This is so because the record does not reflect a time when the Veteran’s other specified trauma and stressor related disorder exhibited symptoms of the type, extent, frequency, or severity indicative of those identified as warranting a 100 percent rating, such as gross impairment in thought process 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; or memory loss for names of close relatives, own occupation, or own name. Thus, a 100 percent rating is not warranted for the Veteran’s other specified trauma and stressor related disorder at any point during the appeal period. The Board is aware that the presence or absence of specific symptoms, which correspond to a particular rating, is not dispositive. 38 C.F.R. § 4.130; Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as noted above, the evidence does not show that the Veteran’s symptomatology associated with his other specified trauma and stressor related disorder is more severe than considered by the 30 percent disability rating assigned. The Board has also considered the lay statements from the Veteran’s family members. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, such an opinion falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To the extent that the Veteran, his spouse, and his brother contend that his other specified trauma and stressor related disorder is more severe than evaluated, while they are competent to describe his symptoms, they are not competent to report that his other specified trauma and stressor related disorder is of sufficient severity to warrant a certain percent evaluation under VA’s criteria for rating other specified trauma and stressor related disorder, as such an opinion requires medical expertise which they do not possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372. As such, the Board concludes that the preponderance of the evidence is against the claims for a disability rating in excess of 30 percent for other specified trauma and stressor related disorder. 38 U.S.C. § 5107(b). The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. 4. Entitlement to an effective date earlier than April 2, 2014, for the grant of service connection for other specified trauma and stressor related disorder. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In deciding this case based on its application of the law to the pertinent facts, the Board notes that the “date of receipt” of claim means the date on which the claim was received by VA, except as to specific provisions for claims received in the State Department, the Social Security Administration, or the Department of Defense. 38 C.F.R. § 3.1(r). In this case, the Veteran seeks an effective date earlier than April 2, 2014, for the grant of service connection for other specified trauma and stressor related disorder. The Board finds that there is no basis to grant an effective date prior to April 2, 2014, for the award of service connection for other specified trauma and stressor related disorder. In fact, the Board concludes that an effective date prior to April 2, 2014, is legally precluded. The law is clear that the effective date for an original claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. The Veteran’s original claim for service connection was received by VA on April 2, 2015. Thus, even assuming that entitlement to service connection for other specified trauma and stressor related disorder arose prior to that date, the earliest possible effective date of a grant of service connection for other specified trauma and stressor related disorder would be the date the initial service connection claim was received—April 2, 2015. Although there are medical records noting a diagnosis of schizoaffective disorder as early as May 1997, the earliest medical record in evidence noting a diagnosis of other specified trauma and stressor related disorder (the disorder for which the Veteran is service-connected) is November 10, 2015. Thus, the later date between the date of receipt of the claim or the date entitlement arose is the date entitlement arose is November 10, 2015. This is the earliest effective date possible based upon the facts in this case and the law and regulations. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). An effective date earlier than April 2, 2014 for service connection for other specified trauma and stressor related disorder is not warranted. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts, 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.