Citation Nr: 21073111 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-60 087 DATE: December 7, 2021 ORDER An initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. Service connection for a back condition is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's PTSD manifested in occupational and social impairment with deficiencies in most areas. Total occupational and social impairment has not been shown. 2. The Veteran's back condition is not related to service. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1990 to September 1994, with additional service in the Army National Guard. The claim is on appeal from an August 2015 rating decision. In February 2021, the Veteran testified at a Board hearing. While the case was in remand status, the RO granted service connection for tinnitus and hearing loss in a July 2021 rating decision. As the benefit sought was granted in full for those issues, they are no longer on appeal. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. An initial rating in excess of 30 percent for PTSD prior to May 4, 2021, and in excess of 50 percent thereafter. The Veteran is seeking a higher rating for his PTSD. The appeal period now before the Board begins on October 23, 2013, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). As noted previously, while the claim was on appeal, the Veteran was awarded a 50 percent since May 4, 2021. As this does not represent a full grant of the benefit sought, the increased rating claim now before the Board is entitlement to an initial rating for PTSD in excess of 30 percent prior to May 4, 2021, and in excess of 50 percent thereafter. General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Specific Legal Criteria The Veteran's PTSD has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. A 10 percent evaluation is warranted for PTSD where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent evaluation is warranted for PTSD where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, 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 evaluation is warranted for PTSD where 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 evaluation is warranted where there is objective evidence demonstrating 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, or 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 work-like setting; and the inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted when 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 and place; and memory loss for names of close relatives, own occupation, or own name. The symptoms listed in DC 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). While Global Assessment of Functioning (GAF) scores may be included in the Veteran's medical records, the Board will not consider GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018) (finding GAF scores to be unreliable indicators of functional impairment not useful in rating psychological disabilities). Facts and Analysis The Veteran contends that he is entitled to a higher rating for his service-connected PTSD. At his February 2021 Board hearing, the Veteran testified that the severity of his symptoms has gotten worse since his June 2015 VA examination, describing sleep problems, increased irritability, strained relationships, and the need to work alone to avoid people. The Veteran underwent a VA examination in June 2015. At that time, he reported living with his spouse and stepson, and occasionally saw his other children that were grown. He described a positive relationship with his wife, but little other social involvement as he does not trust anyone. He indicated that he does not like to go out in large public settings for fear of triggering his memories and anxiety. He worked nights to avoid dealing with as many people. He indicated that he used to have panic attacks "all the time," but was currently on Paxil medication. His symptoms included anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), impairment of short and long term memory, difficulty establishing and maintaining effective work and social relationships, impaired impulse control with reactive irritability and aggressiveness, flashbacks, avoidance, and concentration problems. The examiner opined he suffered occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. VA treatment records reflect that in April 2014 he screened positive for psychotic symptoms with "bizarre beliefs." It was estimated that the percentage of time that his symptoms impacted work and relationships was 75 percent of time. The Veteran also was positive in suicide screening, and he reported having passive suicidal ideation six months prior, stating: "I just thought I would be better off dead." He answered "quite a bit" to experiencing disturbing memories and dreams, reexperiencing events, being upset with accompanied physical symptoms and irritability, trouble with recall, loss of interest, feeling that life is shortened, difficulty concentrating, and being easily startled. Thereafter in November 2014, he reported having good social interaction from being family oriented, going on date nights with his wife, and being close to siblings. However, he also endorsed auditory and visual hallucinations, obsessive thoughts, and phobic reactions, and indicated that he had been in two physical fights with persons of middle eastern descent tied with his PTSD symptoms. In April 2015, the Veteran reported passive suicidal ideation, with no current plan, and responses to a suicide screening of "yes" to thoughts that life was not worth living, thoughts of wanting to take his own life, and wishing he were dead. He again indicated suicidal thoughts in August 2015, and in September 2019 divulged that he attempted suicide in the 1990s just prior to being deployed overseas. In September 2020, he reported "severe" anxiety and depression, and feeling for several days that he would be better off dead or hurting himself in some way. He felt it was "very difficult" to do his work, get along with others, or take care of things at home due to his symptoms, and reported increased careless mistakes, distractibility, concentration, frequent arguments, and isolation. The Veteran was afforded a new VA examination in May 2021. The Veteran reported that he was still married, but noted difficulty with intimacy with his spouse. He continued to take psychotropic medication. His symptoms included: anxiety; suspiciousness; chronic sleep impairment; mild memory loss (such as forgetting names, directions, or recent events); disturbances of motivation and mood; and difficulty adapting to stressful circumstances, including work or work like settings. The examiner found the Veteran to have appropriate hygiene, logical and relevant thought content, good insight and judgment, and without evidence of thought disturbance or psychotic symptomology. Based on his evaluation, the examiner found the Veteran's symptoms continued to reflect occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, with a suicide risk level that was not "at elevated acute risk." Based on the foregoing, the Board determines that the evidence in the Veteran's claims file reflects that his PTSD symptoms most closely approximate occupational and social impairment with deficiencies in most areas for the entire appeal period. This warrants a 70 percent rating. 38 C.F.R. § 4.7. The Board also finds that the Veteran's features of service-connected PTSD do not warrant a rating in excess of 70 percent at any point in the appeal period because the frequency, severity, and duration of the symptoms did not result in total occupational and social impairment. This is with consideration of the listed example symptoms in the rating criteria, consideration that the listed examples are not exhaustive, and with a focus on the impairment levels in which they result. See Vazquez-Claudio, 713 F.3d at 117-118; Mauerhan, 16 Vet. App. at 442. The record reflects that the Veteran has experienced suicidal ideation throughout the appeal period, as noted in April 2014, April 2015, August 2015, and September 2020 VA treatment records. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) (noting the importance of suicidal ideation in the criteria for a 70 percent rating). In addition, VA is prohibited from relying on the absence of a current intent at the time of examinations as a factor weighing against the Veteran's claim. Id. The Board also notes the Veteran reported prior panic attacks "all the time," chronic sleep issues, problems with impulse control with irritability and aggression, auditory and visual hallucinations, obsessive thoughts, and phobic reactions. While these symptoms may have alleviated at times, this could be a result of his consistent use of psychotropic medications. This evidence supports the criteria for a 70 percent rating since the effective date of service connection for PTSD. While an increased rating to 70 percent for the appeal period is warranted, a further increase to 100 for total occupational and social impairment is not warranted. A disability that justifies a 100 percent rating is so severely disabling that some of the examples of symptoms include posing a "persistent" threat of danger to others, "gross impairment in thought processes or communication," not knowing one's own name, the names of close relatives, or one's occupation, and an inability to perform activities of daily living, including maintenance of even minimal personal hygiene due to psychological distress. The Board determines the Veteran has not exhibited such symptoms. The evidence shows that the Veteran maintains adequate hygiene, has remained married throughout the appeal period, continued working, maintained good relationships with his children and his siblings, and described enjoying activities like basketball and mountain biking. Further, the record indicates that the Veteran has demonstrated logical thought processes, good judgment and insight, and memory and concentration are within normal range. Finally, both the June 2015 and May 2021 VA examiners determined that his symptoms most closely approximated occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In sum, after resolving reasonable doubt in the Veteran's favor, the Board finds his PTSD warrants a 70 percent rating since October 23, 2013, the date service connection went into effect, but not higher. See 38 U.S.C. § 5017(b); 38 C.F.R. §§ 3.102, 4.3. Such determination is based on a holistic analysis of the totality of the medical and lay evidence. 2. Service connection for a back condition. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case the claims are denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Analysis The Veteran contends that his back condition is a result of his military service. At the February 2021 Board hearing, he stated that he has experienced back pain ever since service as a result of road marches with heavy weights, and that he must take pain medication for the disorder. Unfortunately, most of the Veteran's service treatment records (STRs) are unavailable for review. The RO took efforts to obtain these records, but determined that only his dental records were available. See August 2015 Correspondence. Post-service medical records first indicate the Veteran seeking medical treatment for daily back pain in December 2008. He reported that he had experienced the pain for three years, that "[s]tarted suddenly just woke up with pain." Imaging revealed degenerative disc disease (DDD) at L4/L5 and L5/L6 of the spine. Thereafter in January 2014, he sought treatment at the emergency department for two weeks of back pain not relieved by over-the-counter medication. The initial clinical impression was acute lumbar strain, but subsequent MRI results in March 2014 revealed multilevel lumbar spondylosis, most prominent at L5-S1 with severe right, and moderate to severe left, neuroforaminal narrowing. In September 2014, the Veteran sought follow-up treatment, for lower back pain that started "10 years prior," i.e., sometime around 2004. The Veteran underwent a Gulf War General Medical Examination in June 2015, in which the examiner also completed a Disability Benefits Questionnaire (DBQ) for the thoracolumbar spine. The Veteran reported intermittent low back pain since approximately 2000, but stated that he did not seek medical attention until 2008. The examiner identified a diagnosis of spondylosis and degenerative disc disease. The examiner opined that his diagnosis represents a condition with a clear and specific etiology, which has not been associated with exposure to environmental hazards such as burn pits exposure, inhalation of fine grain sand, fuel or solvent fumes, insecticides or pesticides or multiple vaccines; therefore, it is less likely as not that his back condition is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. As the June 2015 examiner focused mostly on the Veteran's potential exposure to environmental hazards with his Gulf War duties, in its March 2021 remand, the Board directed for a new VA examination. He was afforded that examination in May 2021. The Veteran reported that the condition began with road marching in heavy gear during service. The examiner confirmed a diagnosis of degenerative arthritis, DDD, and intervertebral disc syndrome (IVDS). However, after review of the medical records and with consideration of the Veteran's lay statements, he opined that the claimed low back condition was less likely than not incurred in or caused by military service. The examiner provided the rationale that there is not enough evidence to support the claim as treatment records lack a continuity of symptoms and treatment since service. With respect to the first element, the evidence of record establishes that the Veteran has current diagnoses for his low back condition of DDD and IVDS, as documented at his June 2015 and May 2021 VA examinations. 38 C.F.R. § 3.303. However, the Board notes that there are no positive medical opinions of record providing a "nexus" or link between the Veteran's current low back condition to his period of active service. With regard to a continuity of symptomatology, the Board finds it is not established so as to presume a nexus for a chronic disease under 38 C.F.R. § 3.303(b) for arthritis. The only notations of arthritis in the record is in the June 2015 VA examination with regard to diagnostic testing, and a diagnosis of degenerative arthritis in the May 2021 examination, both over 20 years following the Veteran's separation from service. Further, the record first indicates the Veteran seeking medical treatment for his low back pain in December 2008, reporting pain for only the past three years, i.e., beginning sometime around 2005. Furthermore, there are inconsistencies in the record with the Veteran's statements as to when his low back pain began, which reduces the Veteran's credibility. While the Veteran testified at his February 2021 Board hearing his belief that the weight carried while on marches might have "messed up" his back, and that ever since he has had a problem, the treatment records consistently indicate that his low back pain began during the early to mid-2000s, per the Veteran's own self reports. See December 2008, January 2014, September 2014, and September 2015 Medical CAPRI Documents, and the June 2015 VA Examination. Due to these inconsistencies, the Board does not find credible the Veteran's statements regarding the onset of his low back disorder during service and a continuity of symptomatology. Additionally, while the Veteran is competent to report the symptoms that he observed during service to include pain, he is not competent to report that his current diagnoses of the low back began during or are a result of his military service, as this is a complex matter requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The most probative evidence is the opinion of the May 2021 VA examiner. The examining physician noted the lack of continuing treatment records following service that would suggest a chronic back condition since service. This conclusion was based on the relevant information, including the Veteran's post-service treatment records, personal medical history, and with consideration of the Veteran's lay statements. Moreover, the examiner's explanations are logical and follow from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In sum, the preponderance of the evidence is against the claim, particularly the direct nexus element, and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for a back condition is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.