Citation Nr: A21019883 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 190827-57177 DATE: December 14, 2021 ORDER Entitlement to an initial rating of 50 percent, but not higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to an inial rating in excess of 10 percent for traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. The occupational and social impairment from the Veteran's PTSD was manifested by reduced reliability and productivity. 2. The Veteran's TBI residuals were manifested by, at most, level 1 facet of impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 50 percent, but not higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for an initial rating in excess of 10 percent for residuals of TBI are not met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8045 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from October 1967 to September 1971. The rating decision on appeal was issued in May 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In August 2019, the Veteran appealed to the Board of Veterans' Appeals (Board) and selected the Hearing docket. Therefore, the Board may only consider the evidence before the agency of original jurisdiction (AOJ) at the time of the decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. §20.302(a). In July 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The record includes additional evidence associated with the file after the allowable time period, which the Board may not consider. Rather, the Veteran can submit a Supplemental Claim, and VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously reviewed. Specific instructions for filing a Supplemental Claim are included with this decision Increased Rating PTSD The Veteran contends that his service-connected PTSD is more severe than the currently assigned 30 percent rating. A review of the VA outpatient treatment reports reveals that for the period from January 2013 to May 2019, when the Veteran was assessed, he was alert and oriented and reasonable and cooperative. His speech was of normal rate and rhythm, his mood was appropriate, and his affect was congruent with mood. He had no perceptual disturbance, and his thought process was normal, coherent, and circumstantial. He had no unusual thought content, no suicidal/homicidal ideation, and no aggressive thoughts. The Veteran had good insight and judgment. His recent and remote memory was normal and there was no psychosis. He denied a history of violent wakeups and his symptoms were controlled with Zoloft and Wellbutrin. At an October 2018 VA examination, the Veteran endorsed thoughts of his trauma once a week and nightmares once a year. His spouse indicated that he had trouble with concentration. He reported that he was married briefly from 1973 to 1975 and he had one child from that marriage. He remarried in 1980 and he was still married, and he described his marriage as wonderful. His wife had three children from a prior marriage, and they had one child together. He reported that he had five friends who he emailed weekly, and he enjoyed gardening. He reported that he worked in sales, as a mechanic, and as a sales manager until he stopped working after a motor vehicle accident in December 1995. The Veteran's symptoms included anxiety, suspiciousness, mild memory loss (such as forgetting names, directions, or recent events), and disturbances of motivation or mood. The Veteran was alert and oriented, his affect was within normal limits, and his thoughts were clear and connected. He was casually dressed, made good eye contact, and had a normal tone. He denied any hallucinations, delusions, or psychosis. The examiner summarized his 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 testified that he avoided people and crowds and did not like to go out. He noted that he falls down a lot and preferred to stay home. He reported that he lived in the woods and forgot a lot of things. He also noted that he misremembered things. He testified that he had five children but two of them did not speak to him or let him see his grandchildren because he was too violent. He noted that he saw his grandchildren once a year. The Veteran reported that he and his spouse slept in separate bedrooms because he thrashed around and woke up suddenly. He stated that he loved his wife very much. He indicated that when he was working, he got confused and was reorganized out of a lot of jobs and did not get along with people. The Veteran's spouse indicated that the Veteran had only three moods and those were impatient, brusque, and surly. She noted that he was never been violent with her, but he was very intimidating. She reported that they had no social life, and the Veteran was very negative and angry which has worsened over the years. She reported that there was friction between the Veteran and his children. The Board finds that a rating of 50 percent, but not higher, is warranted. In this regard, the Veteran has demonstrated occupational and social impairment with reduced reliability and productivity. However, the evidence does not establish the Veteran has demonstrated occupational and social impairment with deficiencies in most areas due to such symptoms as suicidal ideation, obsessional rituals; impaired speech; near-continuous panic or depression; spatial disorientation; neglect of personal appearance and hygiene; or inability to establish and maintain effective relationships. The medical evidence of record indicates that the Veteran's thought process was logical, and goal directed. Although the Veteran testified that he had a fractured relationship with some of his children and he reported that he avoided people, he maintained his current marriage for more than forty years and he had several friends with whom he maintained communication. The Board acknowledges that the Veteran is not currently working; however, the record tends to indicate that his occupational impairment is not due to his PTSD as he reported that he stopped working after an accident in 1995. As such, a 50 percent rating, but not higher, is warranted for PTSD. 38 C.F.R. § 4.130, Diagnostic Code 9411. Increased Rating TBI The Veteran contends that his TBI symptoms warrant an initial rating in excess of 10 percent. VA outpatient treatment reports reveal that the Veteran reported poor balance in November 2015. He denied falls at that time. He endorsed a few falls for which he did not seek medical care in March 2017. He also reported falls due to his TBI in September 2017. He denied head trauma and loss of consciousness. He was advised to use a cane, but he was not agreeable. The records do not indicate that poor balance, or the falls were attributed to any specific diagnosis including TBI and were reported during geriatric assessments. During a VA TBI examination in March 2019, the Veteran reported that his TBI symptoms included dizziness, fatigue, poor balance, lack of endurance, impatience, agoraphobia, and irritability. He denied headaches and treatment for TBI. Clinical evaluation revealed mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions resulting in mild functional impairment. The Veteran reported that he was confused at times and had problems with short term memory, but no deficits were shown on testing. His judgment was normal, his social interaction was routinely appropriate, he was always oriented to person, time, place, and situation, and his motor activity was normal. His visual spatial orientation was normal, and he reported no subjective symptoms. There were no neurobehavioral effects, and the Veteran was able to communicate by spoken and written language (expressive communication) and he was able to comprehend spoken and written language. He had normal consciousness and no subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a TBI (such as headaches or Meniere's disease). The examiner reviewed diagnostic studies performed in 1995 and 1996 which were normal and neuropsychological evaluations performed in 1996 and 2008. Mini-mental state examination (MMSE) results were 30/30. The examiner diagnosed the Veteran with residuals of a TBI and indicated that the Veteran has also been diagnosed with PTSD, depression, and anxiety. The examiner stated that any and all emotional/behavioral signs and symptoms, included his reported lack of patience, agoraphobia, irritability, and history of arrest for felony assault are considered to be due to the psychiatric diagnoses and not due to residuals of TBI. The examiner also opined that the Veteran's subjective symptoms of dizziness, fatigue, poor balance, and lack of endurance were also considered to be related to his psychiatric diagnoses. At the hearing before the Board, the Veteran's representative indicated that the Veteran's TBI examination was performed by a physiatrist and that he was not an appropriate specialist to conduct a TBI examination. The representative also indicated that the Veteran's dizziness, balance problems, and fatigue should not have been attributed to the Veteran's psychiatric conditions and should be considered to be part of the Veteran's TBI residuals. The Veteran testified that he was prescribed a cane and walker for frequent falls. He noted that he broke the walker and had to be prescribed another walker. He indicated that he was unsure what symptoms were caused by his TBI, but he noted that his memory was not good, and he was not able to do wood working and gardening anymore. He also noted that he was easily confused and unable to mow the lawn which he stated could be due to his age. The Veteran's spouse reported that the Veteran did not communicate well and often shut down. She stated that he was unable to take walks due to his unsteadiness. In this case, the criteria for an initial rating in excess of 10 percent for residuals of a TBI have not been met. The findings from the March 2019 VA examination outlined above more closely approximate the criteria for the presently assigned 10 percent rating. The evidence indicated the Veteran had complaints of mild loss of memory, attention, concentration, or executive functions, but without objective evidence on testing, i.e., level "1" impairment for that facet. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. There was no evidence of impaired in judgment, orientation, motor activity, visual spatial orientation, communication, or consciousness. Social interaction and neurobehavioral effects have been considered in a separate rating for PTSD. Other reported subjective symptoms, e.g., dizziness, balance problems, lack of endurance, and fatigue have also been considered and were attributable to the psychiatric condition for which service connection is in effect. The Board notes that the Veteran's representative argued at the hearing that the VA examination conducted for the Veteran's TBI claim was conducted by a physiatrist which is not the appropriate specialist to conduct such an examination. However, VA regulations require that TBI examinations be conducted by a physiatrist, psychiatrist, neurologist, neurosurgeon, or TBI specialist. As the examiner who conducted the examination practices in one of the specialties that are required by VA regulation, the examination is adequate. With regard to the representative's argument that the Veteran's subjective symptoms of dizziness, fatigue, poor balance, and lack of endurance are related to his TBI rather than his PTSD, the examiner thoroughly reviewed the Veteran's claims file, conducted a clinical evaluation of the Veteran, referenced the medical evidence of record and determined that these complaints were symptoms of the psychiatric disorder. Of note, while the Veteran has reported dizziness and poor balance at his VA appointments, these symptoms have not been attributed to residuals of a TBI. As such, the Board concludes that the VA examiner's opinion is adequate. Accordingly, the preponderance of the evidence is against a rating in excess of 10 percent for residuals of a TBI. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.