Citation Nr: 21067874 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-26 344 DATE: November 5, 2021 ORDER Entitlement to a disability rating greater than 50 percent for posttraumatic stress disorder (PTSD) with alcohol dependence is denied. REMANDED Service connection for migraine headaches is remanded. Service connection for stroke residuals is remanded. Service connection for a back disorder is remanded. Service connection for a left knee disorder is remanded. Service connection for sleep apnea is remanded. Service connection for gastroesophageal reflux disease (GERD) is remanded. Service connection for a heart disorder is remanded. A total disability rating based on individual employability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT Throughout the entire period on appeal, the Veteran's PTSD was productive of occupational and social impairment with reduced reliability and productivity, due to such symptoms as mood disturbances and memory impairment. CONCLUSION OF LAW The criteria for a rating greater than 50 percent for PTSD with alcohol dependence have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1976 to July 1979, December 1990 to June 1991, and July 1996 to March 1997, to include foreign service in Southwest Asia. For his meritorious service, the Veteran was awarded (among other decorations) the Southwest Asia Service Medal and the Army Achievement Medal. He testified as to the above appeals during an August 2019 videoconference hearing. A transcript of this proceeding has been associated with the record. These appeals were then remanded by the Board in December 2019 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As first observed by the Board in December 2019, the Veteran has timely appealed the denial of service connection for a left foot disorder. See July 2019 rating decision; August 2019 Notice of Disagreement (NOD). As this appeal was processed under the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), this issue cannot be merged with the instant legacy appeal stream. 38 C.F.R. § 19.2. Additionally, the Veteran sought service connection for fibromyalgia in July 2017. The following month, the Veteran received a letter wherein VA indicated that the claim could not be reopened, as new and material evidence was required. This notification was made in error, as the Regional Office (RO) mistakenly processed the July 2017 submission as a claim for chronic fatigue syndrome. Thus, the claim for fibromyalgia remains unadjudicated by the Agency of Original Jurisdiction (AOJ), such that the Board does not have jurisdiction over the matter. It is instead referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Similarly, the Veteran submitted new service connection claims for asthma and rhinitis under the AMA system in August 2021, which are awaiting adjudication by the AOJ. Increased Rating The Veteran is currently pursuing a rating greater than 50 percent for PTSD. Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Here, the Veteran has properly been rated in accordance with DC 9411, such that a 70 percent rating is warranted upon evidence of the following: 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 work-like setting); and inability to establish and maintain effective relationships. In considering the frequency, severity, and duration of this Veteran's symptoms, a rating greater than 50 percent is not warranted, and the appeal is thus denied. The Veteran underwent multiple VA examinations during the period on appeal. In February 2013, his primary symptoms were identified as depressed mood, anxiety, chronic sleep impairment, and mild memory loss. At that time, he testified as to close relationships with his father, siblings, children, and friends. He walked every morning, remained active in his church community, and socialized with his neighborhood frequently. During evaluation, he presented as mildly anxious and dysthymic. His speech was described as "rapid but not pressured." He denied suicidal or homicidal ideations, and there was no evidence of paranoid thinking or hallucinations. He was described as casually and neatly groomed/dressed, and his interactions with the examiner were cooperative and pleasant. His judgment and insight were also intact. As such, the examiner concluded that the Veteran showed occupational and social impairment with occasional decrease in work efficiency and intermittent periods of the inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran underwent subsequent VA examination in May 2016. At that time, his primary symptoms were identified as depressed mood, chronic sleep impairment, and mild memory loss. During interview, the Veteran described positive relationships with his family and friends; active participation in his church community; continued interest in sports, including local events; and an ongoing effort to remain physically active by walking or mowing his lawn. During evaluation, he was fully oriented but showed memory impairment with short- and long- time delays. He also showed fair to good abstract reasoning; average judgment and intelligence; fair insight; and good impulse control. Intermittent suicidal or homicidal thoughts were reported, absent plan or intent. Similar to his prior examination, he was thus assessed as presenting with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of the inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Following the Board's December 2019 remand, additional examination was provided in March 2020. At that time, the Veteran's primary symptoms were identified as follows: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work-like setting. Nonetheless, he reported positive family and social relationships, including time spent at the local senior center. The Veteran also remained capable of performing light household tasks, taking walks around the neighborhood, and tending to his hygiene and meals without assistance. The examiner described him as polite, cooperative, alert, and oriented, with no overt signs of psychosis. His behavior, grooming, hygiene, and eye contact were all appropriate, and he was able to openly respond to questions. His mood was mildly depressed with an appropriate affect. Worsening sleep impairment was described at that time, although the Veteran's appetite remained intact. His speech was logical, goal-directed, normal in rate and tone, and with no difficulties with articulation or prosody. Thought processes were tangential and the Veteran struggled to answer questions, often requiring redirection. His reality testing was intact. Thought content was within normal limits, absent indications of auditory or visual hallucinations. He did not manifest any "bizarre mentation," abnormal fears, or obsessions. Suicidal and homicidal ideations were also denied, and his insight and judgment were good. As such, the examiner assessed the Veteran as presenting with occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress; or, with symptoms controlled by medication. Extensive VA treatment records spanning the period on appeal directly correspond with the above assessments. Collectively, these records show the Veteran's symptoms of chronic depression and sleep impairment, as treated with medications and therapy. The Veteran typically presented as oriented and alert, and engaged appropriately with his examiners. Suicidal ideations were routinely denied. The Veteran has also offered lay testimony as to the nature and severity of his psychiatric symptoms during the period on appeal. In a June 2016 lay statement, he reported monthly VA counseling to assist with managing his symptoms. Nonetheless, the Veteran was unable to find a job that would "not stress [him] out," and he reported difficulty maintaining familial and social relationships, in part due to anger outbursts. However, during the August 2019 hearing, he reported close family relationships and active participation in his church. Although he experienced some difficulty in crowds, he did not indicate that this prevented his social activities to any notable degree. Accordingly, the evidence does not show that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, as required for the assignment of a higher rating in this case. Rather, the Veteran remained relatively high-functioning throughout the period on appeal, despite the presence of his symptoms. In this respect, he maintained significant familial and social relationships during this time, to include with his extended network of siblings, children, and friends. He remained active in his church community and showed persistent interest in multiple activities, including sports and going on walks. He was consistently capable of communicating appropriately and effectively with his treatment providers, and did not demonstrate impaired thinking or judgment at any time. At no time did the Veteran report or otherwise show the need for assistance with the tasks of daily living, to include meal preparation or light household chores. Such a moderate disability picture is fully contemplated in the criteria for a 50 percent rating, as currently assigned. Additionally, the majority of symptoms enunciated in the criteria for a 70 percent rating, including obsessional rituals, inappropriate speech, impaired impulse control, spatial disorientation, and neglect of personal hygiene, are entirely absent from the record during the period on appeal. In offering this conclusion, the Board has not overlooked the Veteran's May 2016 reports of intermittent suicidal thoughts. However, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Here, the evidence does not establish that the Veteran experienced occupational and social impairment with deficiencies in most areas due to his PTSD, whether due solely to his suicidal ideations or the collective impact of all psychiatric symptoms. This is particularly so when considering that the Veteran reported suicidal ideations on only one occasion during the period on appeal; on all other occasions, he denied such thoughts to his examiners, and never reported impairment caused thereby. More generally, the Board has also contemplated the Veteran's lay testimony in adjudicating this appeal. Although veterans are competent to testify as to their observable symptoms, the Veteran lacks the requisite training and expertise to competently assess his symptoms against the applicable rating criteria. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Veteran's testimony contains marked inconsistencies. For example, in a June 2016 procedural document, he reported social impairment and anger outbursts; on all other occasions, these symptoms are not only denied, but directly contradicted. See also August 2021 representative's memorandum (reporting that the Veteran's symptoms caused difficulty eating); March 2020 VA examination (showing no impacted appetite). In this respect, the Board finds the Veteran's statements offered in the pursuit of medical treatment to be more credible than those offered in pursuit of a higher disability rating. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record). Accordingly, his testimony alone is not sufficiently credible upon which to grant this appeal. Miller v. Wilkie, 32 Vet. App. 249 (2020). Rather, greater probative value is afforded to the objective and competent medical records, which support the determination offered herein. Finally, the Board turns to the content of the March 2020 VA examination, in which the Veteran was diagnosed with service-connected PTSD and nonservice-connected unspecified neurocognitive disorder. In an August 2021 memorandum, his representative argued against the examiner's conclusion that there "is no clinical association between" the two conditions, and offered several citations in support of such a link. However, this argument seemingly misinterprets the examiner's statement, which does not deny a possible link between the two conditions generally, but in this specific case. In this respect, neither the representative nor the Veteran had offered any argument or evidence that the two conditions are etiologically related, or requested service connection for the neurocognitive disorder. Even if such an argument were proffered, the VA examiner's conclusions are not to the detriment of the Veteran. Although the examiner concluded that the symptoms attributable to each condition could be differentiated, and assigned the Veteran's memory impairment (and related cognitive difficulties) to the nonservice-connected condition, the Board has considered the full scope of the Veteran's psychiatric symptoms in assessing this appeal, as multiple prior examiners did not indicate that the cognitive symptoms were unrelated to the PTSD. Upon the above, the Veteran's disability picture most nearly approximates the criteria for a 50 percent rating, as currently assigned. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. Accordingly, the appeal seeking a higher rating is hereby denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeals. In pertinent part, the Board first remanded these matters in December 2019 to obtain a series of VA examinations, which were subsequently completed in March 2020. However, in an August 2021 memorandum, the Veteran's representative challenged the competency of the VA examiner to conduct the requested evaluations. Specifically, "[the examiner] was assigned to evaluate seven of the veteran's conditions, despite having no specialized training, education, or experience in any of these fields." The representative then cited to the examiner's online profile and identified practice areas. In this instance, the Board finds that the Veteran has raised a sufficiently specific argument as to the competency of the examiner as to warrant a remand, such that further information regarding her qualifications must be provided. See Francway v. Wilkie, 940 F.3d 1304, 1307-08 (Fed. Cir. 2019) ("Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist"). Such a finding merits remand of the pending TDIU appeal, as well, as the matters are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: To the extent possible, provide the credentials of the March 2020 VA examiner, as allowed by law, to the Veteran and his representative, and associate copies of the materials provided with the electronic claims file. Allow a reasonable amount of time for the Veteran or his representative to respond. Associate any response and related materials with the electronic claims file. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.