Citation Nr: 21005174 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 16-20 837 DATE: January 29, 2021 ORDER The claim of entitlement to service connection for gout is denied. The claim of entitlement to service connection for dermatitis is granted. The claim of entitlement to initial higher ratings for posttraumatic stress disorder (PTSD), rated as 50 percent prior to February 10, 2020, and 70 percent thereafter, is denied. FINDINGS OF FACT 1. The Veteran’s gout clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated by his service beyond the condition’s natural progression. 2. The evidence is at least evenly balanced as to whether the Veteran’s dermatitis began during active service. 3. Prior to February 10, 2020, the Veteran’s PTSD was characterized by anxiety, irritability, sleep disturbance, hypervigilance, exaggerated startle response, and problems with concentration; occupational and social impairment with deficiencies in most areas was not shown. 4. From February 10, 2020, the Veteran’s PTSD has been characterized by symptoms as in 2015 but to include occasional auditory hallucinations; total occupational and social impairment has not been shown. CONCLUSIONS OF LAW 1. Pre-existing gout was not aggravated by service. 38 U.S.C. §§ 1110, 1111, 1153 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2019). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for dermatitis are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2019). 3. The criteria for a rating for PTSD in excess of 50 percent prior to February 10, 2020, and in excess of 70 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, DC 9411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2009 to May 2009, January 2010 to January 2011, May 2013 to December 2013, and January 2014 to February 2015 This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA). In July 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In July 2019, the issues were remanded for additional evidentiary development and have now been returned for further appellate consideration. The Board notes that the Veteran has verified service in Afghanistan during the Gulf War era. However, Afghanistan is not considered a part of Southwest Asia for the purposes of presumptive service connection due to service in the Persian Gulf. 38 C.F.R. § 3.317(e) (2019). Therefore, the Veteran does not qualify for this theory of service connection in any capacity. Nevertheless, his particular circumstances of service, to include any exposure to environmental toxins, are relevant in deciding these issues for service connection. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime) (2012); 38 C.F.R. § 3.303(a) (2019). To substantiate a claim of service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a relevant disease or an injury in service; and (3) a correlation (“nexus”) between the claimed disability and the disease or injury in service. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012). A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2019). The Veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003. When no preexisting condition is noted upon examination for entry into service, a Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. Therefore, to rebut the presumption of soundness under 38 U.S.C. § 1111 (2012), there must be clear and unmistakable evidence that (1) a Veteran’ s disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id.; see also VAOPGCPREC 3-2003. If this burden is met, the presumption of soundness is rebutted, and the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under 38 U.S.C. § 1111 (2012), the Veteran’s claim is one for service connection. “Clear and unmistakable evidence” is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the “clear and convincing” burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of “clear and unmistakable evidence”). It is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003); citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). In adjudicating a claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran is competent to provide facts about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Entitlement to Service Connection for Gout Treatment records reflect treatment for gout from 2009 to the present day. This includes the Veteran’s service treatment records (STRs) which show that he was treated for gout throughout his military service. It was noted on one record that he had had this condition since he was 24 years old and had had several bouts of arthropathy over his lifetime. Both of his parents had rheumatoid arthritis and gout. At an August 2015 VA examination, the Veteran stated that he was first treated for gout in 2008. In an October 2015 opinion report, the VA examiner opined that the Veteran’s gout clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness. For rationale, the examiner stated that the Veteran was diagnosed with gout at age 24, and that this was prior to service. While the STRs contained multiple clinical notes regarding gout exacerbations from 2009 through 2014, these episodes represented the natural progression of the disease, not an aggravation. There was no in-service injury, event, or illness which contributed to aggravation beyond natural progression. At the 2019 hearing, the Veteran testified that when initially treated for gout, it was in his toe. He had experienced problems ever since. Analysis The Veteran contends that his gout was caused or was worsened by his active service. As noted above, the record contains clear and unmistakable evidence that his gout was diagnosed prior to his initial service entrance in 2009. Thus, there is clear and unmistakable evidence that this disorder preexisted service. As the presumption of soundness has been rebutted, the Board now moves to discussion of aggravation. The record reflects that the Veteran has received ongoing treatment for gout as evidenced by in-service and post-service treatment records. When examined by VA in August 2015, the examiner opined that the disorder clearly and unmistakably existed prior to service as it was diagnosed prior to entry. Moreover, it was opined that in-service treatment for exacerbations of gout did not represent aggravation of the preexisting disorder. These episodes represented the natural progression of the disease. The Board finds the August 2015 VA medical opinion probative as it provided clear conclusions and supporting medical data. The Veteran clearly and unmistakably had gout prior to service as documented above. The examiner reviewed the record and opined that there was no evidence of permanent aggravation during his time in service. The Board accords substantial probative weight to the competent medical evidence, the STRs, ongoing treatment records, and the August 2015 VA examination which combine to show no permanent aggravation in service. Although the Veteran is competent to report having experienced certain symptoms, he has not shown to have the expertise required to opine in matters of etiology as it pertains to this disability. As such, his assertions are of less probative value than the medical record which shows a history of gout prior to service and that it was not aggravated in service. Based on all the evidence of record as discussed above, the Board finds that the Veteran’s preexisting gout was not aggravated beyond the normal progression of the disease by his military service and service connection must be denied. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(b) (2019). Entitlement to Service Connection for Dermatitis. The Veteran contends that he has a current skin disorder which had its onset in service. Review of the STRs reflects that the Veteran was seen in March 2013 (not during a period of active duty) for mild facial acne. He had bumps on his head that came and went. They were not painful but bled if nicked. Four to five lesions on the scalp were noted. In July and August 2013, (while on active duty), he was treated for heat rash. At an August 2015 VA examination, the Veteran was diagnosis with dermatitis with date of diagnosis in 2010. The examiner further noted that the Veteran developed a papular rash on the scalp and face in 2010. In an October 2015 report, the examiner opined that it was at least as likely as not (50 percent or greater probability) that the Veteran’s dermatitis was incurred in or caused by service. While the Veteran was treated for acne in March 2013 (the Board has noted that this was not during a period of active duty), his description of the rash during service (in July 2013) was consistent with his current dermatitis diagnosis. Thus, it was reasonable to associate the current skin disorder with the documented in-service skin condition. At the July 2019 hearing, the Veteran testified that he had a skin disorder he attributed to service. Analysis As documented in the evidence, the Veteran was seen for scalp and facial lesions in 2013 prior to entering active duty. During active duty, he was seen for a rash, and a VA examiner has opined that his current skin disorder of dermatitis may be associated with the in-service disorder. The Board accordingly finds that the evidence is at least in equipoise that the Veteran’s post service dermatitis is the same skin condition he experienced in July and August 2013 during active duty. The claim for service connection is granted. Entitlement to an Increased Rating for PTSD. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2019). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2019). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2019). The Veteran currently receives a 50 percent rating for PTSD prior to February 10, 2020, and a rating of 70 percent thereafter. The Veteran receives his ratings under 38 C.F.R. § 4.130, DC 9411, referring to PTSD. He filed a claim for service connection in February 2015. In an October 2015 rating decision, service connection was granted, and a 50 percent rating was assigned. The Veteran submitted a timely notice of disagreement and this appeal began. During the appeal process, in a June 2020 rating decision, the 50 percent rating was increased to 70 percent, effective February 10, 2020. The appeal continues. In order to warrant a 50 percent rating, the evidence must show 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. In order to warrant a 70 percent rating, the evidence must show occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control (such as unprovoked irritability with periods of violence); near-continuous panic or depression affecting ability to function independently, appropriately and effectively; spatial disorientation; speech intermittently illogical, obscure, or irrelevant; 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. In order to warrant a 100 percent rating, the evidence must show 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/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411 (2019). Prior to April 10, 2020 Based on the evidence of record, the Board finds a rating in excess of 50 for PTSD prior to February 10, 2020 is not warranted. VA mental health examination was conducted in September 2015. At that time, the diagnosis was PTSD. In-service stressors were reported. The disorder resulted in 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. The Veteran completed regular household chores and was able to self-care. In his free time, he enjoyed relaxing and spending time by himself as well as walking his dog. He was employed at a food brokerage firm and was attending college. He got along well with his coworkers, although he sometimes experienced anxiety and irritability toward them. He also experienced anxiety when in groups of people. He reported sleep disturbance. He avoided stimuli associated with the in-service traumatic events. He had markedly diminished interest or participation in significant activities and feelings of detachment or estrangement from others. He had hypervigilance, exaggerated startle response, and problems with concentration. For this period of time, despite the severity of the Veteran’s psychiatric disorder, there were no reports of the symptoms that more nearly approximated those contemplated by a 70 percent disability rating. For example, he did not report suicidal ideation, obsessional rituals that interfered with routine activities, or speech that was intermittently illogical, obscure, or irrelevant. Although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of social and occupational inadaptability. However, there is insufficient evidence to show that a 70 percent rating is warranted based on overall social or occupational impairment. The Board acknowledges that during this period, the Veteran exhibited difficulty in adapting to stressful circumstances such as tolerating crowds, and it appears that he preferred to be alone. However, he worked and said that he got along well with his coworkers, though there was some irritability and anxiety. Consequently, the Board finds that the Veteran is not entitled to a rating for his psychiatric disorder in excess of 50 percent prior to February 10, 2020. From February 10, 2020 Based on the evidence of record, the Board also finds that a rating in excess of 70 percent for PTSD from February 10, 2020 is not warranted. Despite the severity of the Veteran’s psychiatric disorder, the evidence does not show symptomatology which more nearly approximates the severity of symptoms contemplated by the a 100 percent disability rating. First, the Veteran’s VA examinations and treatment records do not indicate a gross impairment in thought processes or communication. During his February 2020 VA examination, the Veteran reported that his symptoms had worsened since the 2015 examination. He was married and had a young son. His marriage relationship was described as “good and bad.” He had a great relationship with his son. He had, however, shut himself off from friends and family. In his free time, he enjoyed watching football and being outside. He enjoyed singular activities such as being alone and smoking a cigar. The Veteran demonstrated a normal appearance, was pleasant and cooperative, and alert and correctly oriented. He reported symptoms of anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control. He continued to be employed at the food brokerage firm as a sales account manager. He did well there and had lost no time from work over the past 12 months due to his mental health. At times, he heard people calling his name. There was no suicidal or homicidal ideation. The Board acknowledges that the Veteran has a history of anxiety and isolation. He also reported emotional detachment from others, but he continues to do well at his place of employment and has a good relationship with his son. His symptoms are accounted for in the 70 percent rating criteria describing symptoms of a near-continuous depression. There are also no indications of those symptoms prohibiting him from functioning independently, appropriately, and effectively. Next, the Veteran has not suffered from delusions or grossly inappropriate behavior as demonstrated by both clinical evidence and the Veteran’s own statements. Notably, there are no indications that the Veteran has had any suicidal or homicidal ideations during the appeal period. Therefore, after considering all of the above-listed factors, the Board finds that the Veteran’s symptomatology, when considered together, does not warrant a 100 percent rating. Indeed, many of the objective symptoms for a 100 percent rating, to include gross impairment in thought processes and communication and disorientation to time or place, have not been shown. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of social and occupational inadaptability. However, there is insufficient evidence to show that a 100 percent rating is warranted based on overall social or occupational impairment. While he apparently enjoys being alone and doing things alone, (walking, watching football, smoking a cigar), he continues to be successfully employed and gets along with his coworkers. Consequently, he has not shown total social and occupational impairment. In considering the appropriate disability ratings, the Board has also considered the Veteran’s statements that his disabilities are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the disabilities are evaluated. Consequently, the Board finds that the weight of the competent evidence demonstrates that the Veteran’s PTSD does not warrant a rating in excess of 50 percent prior to February 10, 2020, and in excess of 70 percent thereafter. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.