Citation Nr: 20021957 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-58 080 DATE: March 30, 2020 ORDER Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD) from 30 to 70 percent is granted. Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran’s PTSD has manifested with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms such as suicidal ideation, impaired impulse control, attention and concentration issues, and difficulty in establishing and maintaining effective work and social relationships. 2. The preponderance of the evidence of record is against finding that the Veteran has had chronic fatigue syndrome at any time during or proximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, diagnostic code 9411. 2. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2000 to December 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in June 2019. A transcript of the hearing is associated with the Veteran’s claims folder. 1. Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD) from 30 to 70 percent is granted. The Veteran asserts that he is entitled to a rating in excess of 30 percent for PTSD. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. In the case of an initial rating, the entire evidentiary record from the time of a Veteran’s claim of service connection to the present is of importance in determining the proper evaluation of the disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). However, where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Under the General Rating Formula for Mental Disorders, a 50 percent disability rating will be assigned where the evidence shows 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. 38 C.F.R. § 4.130, diagnostic code 9411. A 70 percent disability rating applies where the evidence shows occupational and social impairment reflecting 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned where the evidence shows 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; and memory loss for names of close relatives, own occupation, or own name. Id. When evaluating the level of disability from a mental disorder, the rating agency 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). Also, the factors listed in the rating criteria are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; analysis should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme. Rather, the determination should be based on all of a Veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002); see also 38 C.F.R. § 4.126(a). “[A] veteran may only qualify for a given disability rating under § 4.130 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, 116-17 (Fed. Cir. 2013). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. For the entire period contemplated by this appeal, based on review of VA examination reports and treatment records, the Board finds that a disability rating of 70 percent is warranted as the Veteran’s overall disability picture manifests with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In this regard, the Veteran submitted private treatment records dated between May 2009 and September 2009. During this time, he reported symptoms including depression, anxiety, loss of pleasure, difficulty in concentrating, suicidal ideations, and recurring unwanted thoughts. (1/12/2016, Medical Treatment Record – Non-Government Facility, p. 1). In April 2016 the Veteran was afforded a VA PTSD examination, wherein a VA examiner found that his symptoms included: disturbances of motivation and mood; chronic sleep impairment; suspiciousness; and anxiety. The examiner noted PTSD symptoms, including: recurrent distressing memories and dreams; avoidance of external reminders of traumatic event; persistent negative beliefs; and irritable behavior and angry outbursts. The examiner opined that the Veteran’s symptoms caused occupational and social impairment due to mild or transient symptoms. In discussing his occupational history, the Veteran reported steady employment since his discharge from the military. He denied issues at work, but did admit to being easily frustrated and having occasional outbursts directed at his coworkers. Regarding his family history, the Veteran reported being married without significant issues in the marriage. (4/22/2016, C&P Exam, p. 1, 3, 5-7). He had two ex-wives and a teenage child from one of his earlier marriages with whom he had no contact. He had a young son in his current marriage and spent time with him, along with seeing his family weekly. He had friends that he messenged on social media a few times a week. In December 2018 the Veteran submitted a private PTSD examination, wherein the private examiner found that his symptoms included: grossly inappropriate behavior; impaired impulse control, such as unprovoked irritability with periods of violence; obsessional rituals; suicidal ideations; inability to establish and maintain effective relationships; difficulty adapting to stressful circumstances; difficulty in establishing and maintaining effective work and social relationships; disturbances of motivation and mood; impaired abstract thinking; impaired judgment; speech intermittently illogical, obscure, or irrelevant; circumstantial, circumlocutory, or stereotyped speech; impairment of short and long term memory; mild memory loss; chronic sleep impairment; panic attacks; suspiciousness; anxiety; and depressed mood. The examiner opined that the Veteran’s symptoms caused occupational and social impairment with deficiencies in most areas. In discussing his occupational history, he reported being employed in his current position since 2010, but indicated he has negative relationships with other employees. Regarding his family history, the Veteran reported being married for the last five years. He also reported current feelings of fleeting suicidal ideations and a history of suicide attempts. (12/12/2018, PTSD DBQ, p. 2, 5, 7-8). After a review of the evidence, the Board finds that the Veteran’s reported symptoms warrant a finding of occupational and social impairment with deficiencies in most areas throughout the entirety of the rating period on appeal. During the relevant period, the Veteran’s symptoms included suicidal ideation and impaired impulse control. Such symptoms are contemplated by the 70 percent evaluation. 38 C.F.R. § 4.130, diagnostic code 9411. Accordingly, the Board finds that his PTSD disability picture more nearly approximates a 70 percent evaluation. A higher disability rating of 100 percent is not warranted as evidence does not demonstrate that the Veteran has total occupational and social impairment. While the December 2018 private examiner did indicate that the Veteran’s symptoms include grossly inappropriate behavior, a symptom contemplated by the 100 percent evaluation criteria, the Board finds that his symptoms has not caused total occupational and social impairment. In this regard, the Veteran reported having been employed in his current position since 2010, which indicates that his symptoms do not cause total occupational impairment. Moreover, evidence demonstrates that he has maintained a positive relationship with his current spouse and son, and has some friends on social media, which indicates that his symptoms do not cause total social impairment. Therefore, the Board finds that a higher rating of 100 percent is not warranted. In sum, the Board finds that the totality of the evidence demonstrates that the disability picture for the Veteran’s PTSD warrants a 70 percent rating for the entire period contemplated by this appeal. As total social and occupational impairment has not been shown, a 100 percent evaluation is not warranted. 2. Entitlement to service connection for chronic fatigue syndrome (CFS). The Veteran asserts that he is entitled to service connection for CFS. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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. The Board concludes that the Veteran does not have a current diagnosis of CFS and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The April 2016 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of fatigue, he did not have a diagnosis of CFS. (4/28/2016, C&P Exam, p. 3). It was further noted that as all disorders were associated with specific etiologies and diagnoses and thus there was no finding of a medically unexplained chronic multisymptom illness. Further, the Veteran’s private treatment records do not contain a diagnosis of CFS. While the Veteran believes he has a current diagnosis of CFS, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. After a review of the evidence, the Board concludes that the Veteran does not have a current disability. The Board finds that the preponderance of the evidence is against the claim and the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b). As such, service connection for CFS is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a low back disability is remanded. In April 2016 the Veteran was afforded a VA back examination and opinion. The VA examiner opined that the Veteran’s low back disorder was less likely than not incurred in or caused by an in-service injury, event or illness, as “[t]here is [no] evidence in the service medical records that a significant back injury occurred.” In rendering his decision, the examiner found no evidence of a back injury in the Veteran’s service treatment records and no mention of a back injury in his post-deployment examination. (4/28/2016, C&P Exam, p. 2). However, such conclusions were based, at least in part, on an inaccurate factual premise. In this regard, the Veteran’s service treatment records indicate that he injured his back in February 2003. Additionally, in an October 2004 report of medical history, he endorsed low back pain. (10/5/2004, STR – Medical, p. 38, 70). Therefore, the Board finds that the April 2016 examination is inadequate for evaluation purposes. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for his private medical providers. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.