Citation Nr: 21075226 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 13-26 953 DATE: December 17, 2021 ORDER An initial rating in excess of 50 percent for posttraumatic stress disorder with insomnia (PTSD) is denied. REMANDED Entitlement to service connection for right ankle wound residuals is remanded. FINDING OF FACT For the entire appeal period, the Veteran's PTSD is manifested by psychiatric symptomatology resulting in occupational and social impairment with reduced reliability and productivity, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas or total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to July 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 2011 and March 2012 by a Department of Veterans Affairs (VA) Regional Office. In August 2017, the case was remanded in order to afford the Veteran his requested Board hearing. Thereafter, in November 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In March 2018, the Board remanded the claims on appeal, as well as a claim for service connection for loss of teeth, for additional development. While on remand, an August 2021 rating decision granted service connection for loss of teeth numbers 6 through 11. As such represents a full grant of the benefits sought with respect to such issue, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The remaining issues now return for further appellate review. 1. Entitlement to an initial rating in excess of 50 percent for PTSD. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran's PTSD is rated as 50 percent disabling as of September 20, 2010, the date of service connection, under the criteria of Diagnostic Code 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. Such provides a 50 percent rating 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 when 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). As previously noted, for the entire appeal period, the Veteran's service-connected PTSD is rated as 50 percent disabling. Therefore, to warrant a higher rating, the evidence must show manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas or total occupational and social impairment. In this regard, throughout the appeal period, the evidence of record, to include the Veteran's lay statements, his VA treatment records, and VA examinations conducted in January 2011, December 2012, and August 2021, demonstrates psychiatric symptomatology of chronic sleep impairment, insomnia, distressing dreams/ nightmares, anxiety, hyperarousal, detachment, irritability, suspiciousness, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, memory loss for traumatic events, and withdrawal/isolation. Additionally, the evidence shows sporadic reports of anger outbursts, and difficulty in adapting to stressful circumstances, including work or a worklike setting. In particular, during his November 2017 Board hearing, the Veteran indicated that he had a very low tolerance for people and a short fuse, which led to verbal altercations/discussions. He further indicated that he had difficulty with authority, and tried working in a corporate-type atmosphere, but did not have the temperament for it. Further, a December 2012 VA examiner reported that, if the Veteran worked in an occupational setting where he had to work with others closely and on an ongoing basis, he would likely have significant work-related disruptions caused by his symptoms. With respect to the reports of irritability and angry outbursts during the appeal period, the contemporaneous evidence does not reflect that such impaired impulse control and/or unprovoked irritability otherwise resulted in periods of violence. At the January 2011 VA examination, the Veteran noted that he had managed to tone his irritability down. Here, he indicated that his irritability escalated with drinking; however, he was no longer a heavy drinker. Further, the record reflects that the Veteran would remove himself from stressful situations when he became irritable. In this regard, during his November 2017 Board hearing, he reported that he isolated himself in order to cope with his irritation and anger, being afraid that he may lash out indiscriminately at people. Additionally, at the August 2021 VA examination, the Veteran indicated that he and his spouse would complete separate activities, which helped with irritability, and when he raised his voice with her or was "short," he took a higher dosage of medication. Moreover, with respect to the lay testimony regarding memory impairment, the competent medical evidence described herein does not attribute any cognitive impairment to the Veteran's service-connected PTSD. Further, while the Veteran may have difficulty in adapting to stressful circumstances, including work or a worklike setting, he has demonstrated that he has the ability to work in a productive manner throughout the appeal period, which will described in further detail below. As pertinent to occupational impairment, the January 2011 VA examination report indicates that the Veteran was employed for 30 years as an 18-wheeler truck driver and was also a self-employed construction worker. Here, the examiner determined that the Veteran's psychiatric disability did not impair his ability to engage in physical or sedentary forms of employment. On VA examination in December 2012, the Veteran reported that he currently worked at Seneca Army Depot where he helped coordinate transportation between railroad and trucking. He indicated that he was generally comfortable at work. Additionally, the examiner found that his occupational functioning was mild due to his current work circumstances. Further, the August 2021 VA examination report reflects that the Veteran had his own trucking company and had no problems on the job. With regard to social impairment, the January 2011 VA examination report notes that the Veteran had been married for a couple years, and he and his spouse had been together for over 12 years. Such report further notes that the Veteran believed he got along with people; however, he preferred to be alone and did not socialize. On VA examination in December 2012, the Veteran indicated that he was married and close with one of his daughters. During his November 2017 Board hearing, the Veteran noted that he did not correspond with his family members and rarely got along with them socially. He further noted that he tried to contact his daughter at least once a week/every two weeks and, while he was currently married, he was making an effort to push his spouse away, and he did not have any friends. At the August 2021 VA examination, the Veteran reported that he had been married for 19 years and was close to all of his children except his oldest daughter, but had no friends. Notably, the VA examiners, who are psychologists or psychiatrists with expertise in assessing the nature and severity of psychiatric disabilities, found, in consideration of the entirety of the nature, frequency, duration, and severity of the Veteran's PTSD symptomatology, that such disability resulted in mild impairment in social and industrial functioning in January 2011, and occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks in December 2012 and August 2021, which is consistent with 10 and 30 percent ratings, respectively, under the General Rating Formula. Similarly, the Board finds that the overall disability picture indicates that the Veteran's psychiatric symptomatology was, at most, moderate in severity throughout the entire appeal period. Specifically, although he had strained relationships with his spouse and his oldest daughter, and did not have any friends, the record shows that he was able to maintain his marriage throughout the entire appeal period (over 19 years), and had a good relationship with all of his remaining children. Moreover, while the Veteran would have difficulty working closely with others, the record reflects that he successfully maintained employment for over 30 years as an 18-wheeler truck driver and self-employed construction worker. Further, the Board finds the currently assigned 50 percent rating contemplates the Veteran's difficulties maintaining both personal and professional relationships. Thus, the Board finds that the nature, frequency, severity, and duration of his psychiatric symptomatology results in, at most, occupational and social impairment with reduced reliability throughout the entire appeal period. Therefore, the criteria for an initial rating in excess of 50 percent PTSD have not been met. In reaching such conclusion, the Board acknowledges the Veteran's belief that his PTSD is more severe than as reflected by the currently assigned disability rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide opinions regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than the lay reports regarding the severity of his disability. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected psychiatric disability; however, the Board finds that his symptomatology has been stable throughout the entire period on appeal. Thus, assigning staged ratings for such disability is not warranted. Furthermore, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (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). In conclusion, the Board finds that an initial rating in excess of 50 percent for the Veteran's PTSD is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to service connection for right ankle wound residuals. The Veteran claims that he incurred a laceration on his right ankle that required stitches, and currently has a scar that ached in cold weather, as a result of an in-service rocket attack. Specifically, he indicated that, in approximately the fall of 1970 at the Da Nang Air Base, he had just come off of patrol when the base was hit by a rocket attack. The rocket exploded very close to the footbridge and he and another soldier were blown off of the bridge. While the record does not document such in-service event, the Agency of Original Jurisdiction (AOJ) accepted that the event occurred in light of the Veteran's involvement in combat while stationed in Da Nang, Vietnam, and awarded service connection for missing teeth that were knocked out as a result of the same event. An August 2011 VA treatment record reflects the Veteran's report of right ankle pain and an August 2021 VA examination revealed a diagnosis of a chronic right ankle sprain. However, the examiner opined that such disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, he found that there was no evidence of a blast injury or right ankle wound in service and, while the Veteran has a scar on his right shin area, such was noted on his April 1969 entrance examination. However, as the VA examiner relied upon the lack of documentation of the blast and/or an in-service right ankle injury when the AOJ has accepted the occurrence of the blast as consistent with the circumstances of the Veteran's combat service in Da Nang, Vietnam, the Board finds that a remand is necessary to obtain an addendum opinion that addresses such matter. The matter is REMANDED for the following action: Return the record, to include a copy of this remand, to the VA examiner who conducted the August 2021 VA ankle conditions examination, or an appropriate substitute if he is unavailable, for an addendum opinion. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran has residuals of an in-service right ankle wound, to include chronic right ankle sprain and/or a scar, that was incurred when he was blown off a footbridge as a result of a rocket attack that occurred at Da Nang Air Base in the fall of 1970. In offering such opinion, the examiner should accept that the in-service blast occurred as described by the Veteran as it is consistent with the circumstances of his combat service in Da Nang, Vietnam. He or she is further advised that the sole basis for a negative opinion cannot be the fact that the Veteran's service treatment records are negative for complaints, treatment, or a diagnosis referable to a right ankle disorder. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, 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.