Citation Nr: 21075746 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 19-16 906 DATE: December 21, 2021 ORDER For the entire period on appeal, entitlement to an evaluation of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with unspecified depressive disorder is granted. Entitlement to service connection for a seizure disorder is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas. It was not productive of total social impairment 2. The Veteran's seizure disorder began in service and has continued to present. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130 Diagnostic Code 9411. 2. The criteria for entitlement to service connection for seizure disorder have 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 March 1988 to February 1990. She appeals May 2019 and January 2017 rating decisions by the Agency of Original Jurisdiction (AOJ). Procedurally, regarding the Veteran's claim for an initial increased rating for her psychiatric disability, a November 2018 rating decision granted service connection for other specified trauma and stressor related disorder with anxiety and depressed mooed with a 30 percent disability rating, effective July 23, 2018. The Veteran appealed the initial rating assigned in a December 2018 Notice of Disagreement (NOD). Subsequently, the Veteran's rating was increased to 50 percent in a May 2019 rating decision, effective July 23, 2018. Notably, this rating decision recharacterized the Veteran's psychiatric disability as PTSD with unspecified depressive disorder. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Increased Rating for PTSD The Veteran's PTSD is currently rated as 50 percent disabling. The Veteran generally contends that she is entitled to a higher rating. See December 2018 NOD. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation 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. Id. A 70 percent evaluation is warranted for 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. Id. A 100 percent evaluation 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to 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). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Upon careful review and reconsideration of the evidence of record the Board finds that an initial rating of 70 percent is warranted, as the weight of the evidence supports a finding that the Veteran's PTSD has resulted in occupational and social impairment with deficiencies in most areas for the entire period on appeal. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran stated at her Board hearing that due to her psychiatric symptoms, she will be in her house for weeks at a time. See Board Hearing Tr. at 13. She stated that she self-isolates from everyone, including her boyfriend and friends, and does not eat, change clothes, wash herself, cook, or clean. Id at 15. The Veteran described these frequent bouts of self-isolation as incapacitating. Id at 19. The Veteran stated that even after these periods of isolation pass, she is very anxious and guilty when attempting to rejoin the world. Id at 17. The Veteran attended a May 2019 VA examination. The Veteran's symptoms were listed as depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. See May 2019 VA examination report. The Veteran attended an August 2018 VA examination. The Veteran's symptoms were listed as depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. See August 2018 VA examination report. In sum, the Board finds the Veteran's actions and symptoms have resulted in deficiencies in most areas, including work, judgment, thinking, and mood. As noted above, 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 for that rating. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that her psychiatric symptoms more nearly approximate the 70 percent rating criteria for the entire period on appeal. The Board bases this finding on the VA medical opinions of record, as well as considering the statements made by the Veteran during her Board hearing. The Board found particularly persuasive the Veteran's descriptions of long periods of self-isolation which she described as incapacitating. The Veteran's symptom picture does not, however, reflect total social and occupational impairment, the next criteria required for the next highest rating, or 100 percent. While the Veteran did experience some symptoms contemplated by a 100 percent rating, the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. Indeed, the Veteran remembers her own name and the names of her family members. The Board notes that the Veteran indicated she had issues maintaining personal hygiene during her Board hearing; however, the Veteran is also noted to have the ability to maintain person hygiene at her May 2019 VA examination and was noted to be appropriately dressed and groomed during her August 2018 VA examination. See May 2019 and August 2018 VA examination reports. Furthermore, and critically, the Veteran is not totally socially impaired. While the Veteran reported periods of self-isolation, the Veteran also reported having friends and a boyfriend. She also stated that she loves her job and working with fellow veterans. See Board Hearing Tr. at 15, 18. The record also does not reflect the Veteran is a persistent danger to others. Moreover, the Veteran has consistently denied suicidal ideation. Finally, the Veteran was routinely found to be properly oriented without gross impairment in thought or communication. See May 2019 and August 2018 VA examination reports. As noted above, the Veteran's symptoms are either contemplated by or more consistent with a 70 percent rating. Based upon Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran's symptoms have remained constant at 70 percent levels for her PTSD, staged ratings are not warranted. In sum, the Board concludes that based on the symptomatology described in the evidence of record a rating of 70 percent, but no higher, is warranted for the entire period on appeal. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). This rating contemplates the severity, frequency, and duration of the Veteran's symptoms and is based on all the evidence of record. See 38 C.F.R. § 4.126(a). 2. Entitlement to service connection for a seizure disorder The Veteran contends that her seizures began in service and have continued to present. Specifically, she stated that she did not have her first seizure until she was in service, just before the birth of her son in 1989. See Board Hearing Tr. at 6. The Veteran has current diagnoses of tonic-clonic seizures or grand mal and psychomotor epilepsy. See May 2019 VA examination report. A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as epilepsies (seizure disorders). See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As a preliminary matter, the Board notes that there is a question of preexistence of the Veteran's seizure disorder. A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant 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 Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran's February 1988 enlistment examination did not note a seizure disorder or history of seizures. See February 1988 enlistment examination. On the Report of Medical History, the box regarding "epilepsy or fits" was checked "no." Id. The Board notes that the Veteran's Medical Board Report indicates that the Veteran had "spells" since the age of 16 and concluded that her seizures existed prior to service. See November 1989 Medical Board Report. However, the Veteran has consistently and credibly stated that she never had seizures prior to service. This contention is corroborated by various medical reports. The Veteran's history reported during an August 1993 VA examination states that her first seizure was while on active duty in 1988. See August 1993 VA examination report. A note from her private doctor indicates that her seizures started in 1989 around the birth of her son. See April 2014 Dr. J.E.C. letter. Further, the Veteran provided credible testimony at her Board hearing regarding the onset of her seizures during service. She also gave a reasonable explanation as to why the 1989 Medical Board Report could have mistakenly indicated that she had "spells" since the age of 16. See Board Hearing Tr. at 6-7. The Veteran is competent to report the onset and continuation of her seizures and the Board finds her reports credible. Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board concludes that VA has not met the clear and unmistakable evidence standard in order to rebut the presumption of soundness. Specifically, given the that the Veteran's enlistment examination was silent for seizures, as well as the Veteran's credible statements that she did not experience any seizures until active service, the Board concludes that VA has not shown by clear and unmistakable evidence that a seizure disorder existed prior to service. Therefore, the presumption of soundness attaches to the Veteran. See Wagner v. Principi, 370 F.3d 1089, 1092 (2004); 38 C.F.R. § 3.304(b). As such, this case centers on whether the Veteran's seizure disorder was attributable to time spent in service. The evidence need only be in equipoise to grant the benefit sought. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As the evidence demonstrates that the seizures first manifested in service, the Veteran is entitled to service connection for her seizure disability. The Veteran's service treatment records (STRs) note a diagnosis of complex partial seizure disorder, poorly controlled. See November 1989 Medical Board Report. She was ultimately medically discharged because of said seizures. (Continued on the next page) As the presumption of soundness as to seizures is not rebutted, the Board finds that the seizures first documented during service have been affirmatively shown to have onset during service. 38 C.F.R. § 3.303(a). After resolving reasonable doubt in favor of the Veteran, the Veteran's seizure disorder was present during service and is present currently and is not clearly attributable to an intercurrent cause. Therefore, service connection is granted. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.