Citation Nr: 21001061 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 08-31 896 DATE: January 6, 2021 ORDER Entitlement to service connection for tinnitus is dismissed. Entitlement to increases in the “staged” 30 and 50 percent ratings for posttraumatic stress disorder (PTSD) are denied. Entitlement to rating in excess of 20 percent for residuals of a hemorrhoidectomy is denied. FINDINGS OF FACT 1. In a September 2020 decision, during the pendency of this appeal, the local Regional Office (RO) granted the Veteran’s claim of entitlement to service connection for tinnitus and rated it as 10-percent disabling retroactively effective from November 30, 2006, so back to the date of receipt of his claim for this disease; this is maximum permissible schedular rating for this condition. 2. Prior to May 29, 2009 the most probative evidence indicates the Veteran’s PTSD, at worst, caused occupational and social impairment with reduced reliability and productivity; from that date onwards his PTSD has caused at most occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. Prior to February 7, 2008, his hemorrhoids caused just relatively mild or moderate symptoms and since then he has been in receipt of the maximum permissible schedular rating for hemorrhoids. CONCLUSIONS OF LAW 1. The appeal for entitlement to service connection for tinnitus is dismissed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). 2. Ratings for the PTSD higher than 50 percent prior to May 29, 2009, and higher than 30 percent since, are not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2018). 3. Prior to February 7, 2008, the criteria are not met for an initial compensable rating for the hemorrhoids, and since February 7, 2008 there is no suggestion of an exceptional or unusual disability picture as to render impractical application of the regular schedular standards and, in turn, warrant referring this claim for consideration of whether a rating even higher than 20 percent is warranted on an extra-schedular basis. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.114, DC 7336 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1984 to February 1987 and from March 2003 to March 2004. This appeal to the Board of Veterans’ Appeals (Board) is from a December 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) – which, in relevant part, granted service connection for the Veteran’s PTSD and assigned an initial 30 percent rating for it retroactively effective from November 30, 2006, so back to the date of receipt of his claim for this mental disorder. The RO also granted service connection for status post hemorrhoidectomy and assigned an initial 0 percent (so noncompensable) rating as of that same effective date. However, the RO conversely denied his claim for service connection for tinnitus. He appealed for higher initial ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating in this circumstance VA adjudicators must consider whether to “stage” the ratings, meaning assign different ratings since the effective date of the award if there have been occasions when the disabilities have been more severe than at others). This “staging” since has occurred because a more recent September 2020 rating decision during the pendency of this appeal, in part, increased the initial rating for the PTSD to 50 percent from November 30, 2006 to May 28, 2009; effective May 29, 2009, this mental disorder again was rated as 30-percent disabling. As well, the rating for the hemorrhoidectomy residuals was increased from 0 to 20 percent as of February 7, 2008, and service connection for tinnitus was granted with an evaluation of 10 percent retroactively effective from November 30, 2006, so back to the date of receipt of the claim for this condition. Therefore, this appeal now partly concerns whether an initial rating higher than 50 percent was warranted for the PTSD prior to May 29, 2009 (i.e., from November 30, 2006 to May 28, 2009) and whether a rating higher than 30 percent has been warranted since May 29, 2009 for the PTSD and whether a compensable rating is warranted for the hemorrhoidectomy residuals prior to February 7, 2008 and rating higher than 20 percent since. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal). But, as will be discussed, since the Veteran has been granted service connection for his tinnitus, this claim is being summarily dismissed because it has been granted in full. Moreover, he has received the maximum permissible schedular rating for tinnitus of 10 percent dating back to the when he filed this claim. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), citing 38 C.F.R. § 4.87, DC 6260. And, if he believes he is entitled to an even higher rating, which resultantly is only possible (if at all) on an extra-schedular basis under the special provisions of 38 C.F.R. § 3.321(b)(1), he must separately appeal this “downstream” issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to Service Connection for Tinnitus In the September 2020 decision already mentioned, the Decision Review Operations Center in Washington, DC, which was charged with further developing this claim on remand, granted it. Consequently, there is no remaining justiciable case or controversy because the benefit sought on appeal was granted in full. Accordingly, this claim is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.204 Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. “Staged” ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal, irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999) (initial rating); Hart v. Mansfield, 21 Vet. App. 505 (2007) (established rating). The evaluation of the same disability under several DCs, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 2. Entitlement to Increases in the “Staged” 50 and 30 Percent Ratings for PTSD The Veteran’s PTSD is rated under DC 9411 of the General Rating Formula for Mental Disorders. This General Rating Formula provides for a 30 percent rating when there is 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, recent events. A 50 percent rating is warranted when there is 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. A 70 percent rating 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; 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 worklike 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 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. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms listed after that phrase are not intended to constitute an exhaustive list, but rather are to serve as mere examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment). In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that “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.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment but shall not assign an evaluation based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. The Veteran initially underwent a VA examination for his PTSD in October 2004. He reported nightmares about death, sleeplessness, and difficulty concentrating at work. He reported being hospitalized while in service due to his mental health. He reported taking several medications for his PTSD. He reported that he was then currently out of work because of his neck, back, and leg pain following a motor vehicle accident but that he expected to return to work when he recovered.   He denied suicidal ideation. The examiner surmised the Veteran would have to take time off from his work due to his depression, sleep, and traumatic memory problems. The Veteran was next afforded a VA PTSD examination in November 2007. The examiner indicated the Veteran’s PTSD interfered with his employment functioning. The Veteran reported recurrent, intrusive, and distressing recollections of his time in Kosovo. He reported nightmares that had worsened during the past two months. He reported avoiding military shows and news about Iraq. He reported anhedonia. He reported that treatment, including medication, was helpful for managing his symptoms but that he was not then currently in treatment. He indicated he worked off and on detailing cars. He added that, since his last exam, he had divorced and remarried and that his thirteen-year-old son had come to live with him. He reported no problems with personal hygiene, eating, and dressing. The examiner diagnosed PTSD and major depressive disorder (MDD). The Veteran was next examined by the VA for his PTSD in May 2009. He reported he still had recurring dreams about his time in Kosovo. He reported being prescribed medication to help with his sleep. He reported hypervigilance, though he denied any problems getting along with coworkers and said he has never had a problem being fired due to his attitude. He reported that he was still self-employed. He indicated just occasional excessive drinking. He reported that he was involved in mental health treatment – including counseling and medication. He explained that he was still self-employed and that he has missed time from work due to emotional problems, but not very often. The examiner diagnosed PTSD and alcohol abuse. The Veteran’s most recent VA examination was in September 2020. He reported anxiety, chronic sleep impairment, and disturbances of motivation and mood. He indicated he is now living by himself following a second divorce. He reported still working off and on as an auto detailer. He reported that his back and sciatica affect his ability to work; he did not additionally cite his PTSD. The examiner diagnosed PTSD and opined that it caused the Veteran occupational and social impairment due to mild or transient symptoms. Based on the results of those several mental status evaluations, and the other relevant evidence in the file, prior to May 29, 2009 the Veteran’s PTSD at most presented a disability picture suggestive of occupational and social impairment with reduced reliability and productivity (so which is contemplated by the 50 percent rating he had for his PTSD during this initial period at issue). Occupational and social impairment with deficiencies in most areas was not shown, such as to in turn warrant a higher 70 percent or even greater 100 percent rating, the latter of which requires total occupational and social impairment. Accordingly, a schedular rating exceeding 50 percent was not warranted for this initial period at issue prior to May 29, 2009 Since May 29, 2009, the Veteran’s PTSD has manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. But at no time during this succeeding period has his PTSD caused occupational and social impairment with reduced reliability and productivity, in turn, warranting a higher 50 percent rating. While the constellation of his symptoms has included depressed mood and anxiety, he notably has remained able to live independently (despite two divorces) and care for his personal needs and maintain other healthy social relationships – notably with his family. At all times he has been observed to be adequately groomed, correctly oriented (to time, place, person and situation) and has shown appropriate thought processes. He has been found able to fully and independently perform activities of daily living. He has denied suicidal and homicidal ideation, even contemplation of it. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (holding that the mere presence of suicidal ideation, alone, may cause occupational and social impairment with deficiencies in most areas (so as to, in turn, warrant a 70 percent disability rating under 38 C.F.R. § 4.130). In short, he is adequately compensated for his PTSD at the 30 percent level such that an increase in this rating is not warranted.   3. Entitlement to rating in excess of 20 percent for the postoperative residuals of the hemorrhoidectomy The Veteran also believes he is entitled to increases in the “staged” 0 and now 20 percent ratings for the postoperative residuals of his hemorrhoidectomy. The Veteran’s hemorrhoidectomy residuals are rated under DC 7336, which specifically concerns hemorrhoids. According to this DC, a noncompensable rating is warranted for external or internal hemorrhoids with mild or moderate symptomatology. A 10 percent rating is warranted when hemorrhoids are large or thrombotic and irreducible, with excessive redundant tissue evidencing frequent recurrences. A maximum 20 percent rating is warranted when there is persistent bleeding and with secondary anemia, or with fissures. The Veteran first had a VA exam for hemorrhoids in November 2007. At that examination he reported a past hemorrhoidectomy but denied any then current postoperative symptoms or residuals. The Veteran was next examined by VA in May 2009. He complained of anal itching, pain, swelling, and bleeding with bowel movements on a frequent basis. Consequently, the Veteran’s hemorrhoids and corresponding symptoms were more consistent with a noncompensable rating under DC 7336 prior to February 7, 2008 and since then he has had the highest possible schedular rating for hemorrhoids. It is not shown that the Veteran’s disability picture owing to his hemorrhoids is so exceptional or unusual as to, in turn, warrant referring this claim to the Director of the Compensation Service for extra-schedular consideration under the special provisions of 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).   For these reasons and bases, the preponderance of the evidence is against increases in the “staged” ratings he has. In denying any greater rating during either period being considered, the Board finds the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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.