Citation Nr: 21007494 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 20-00 349A DATE: February 9, 2021 ORDER An initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. A compensable rating for malaria is denied. REMANDED Entitlement to a separate rating for headaches as residuals of malaria is remanded. Entitlement to a separate rating for fatigue/muscle weakness as residuals of malaria is remanded. FINDINGS OF FACT 1. The competent and probative evidence shows that the Veteran’s PTSD, is manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but no higher, throughout the rating period on appeal. 2. The Veteran’s service-connected malaria is not shown to be currently active or productive of residual liver impairment, spleen impairment, or other significant and non-transient residuals. CONCLUSIONS OF LAW 1. The criteria for rating in excess of 30 percent for PTSD are not met. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9440. 2. The criteria for a compensable rating for malaria, including residuals, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.20, 4.31, 4.88b, DC 6304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to September 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The record showed that the Veteran requested to participate in the Rapid Appeals Modernization Program (RAMP). See 8/24/2018 RAMP Opt-in Election; see also 11/5/2018 RAMP Opt-in Election. However, these requests could not be processed under RAMP because the Veteran’s appeal did not qualify for the program. See 9/19/2018 Correspondence. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. An initial rating in excess of 30 percent for PTSD. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. “A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). VA is to 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). Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), 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 rating is warranted if the disability is productive of 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; difficulty in establishing and maintaining effective work and social relationships.   A 70 percent rating 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 work like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: 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 hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 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 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). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The record showed that the Veteran was assigned an initial disability rating of 30 percent in a May 2018 rating decision that granted service connection, effective February 10, 2018. As noted above, in order to warrant a higher rating, the Veteran’s disability would have to be manifested by occupational and social impairment with reduced reliability and productivity. The Veteran contends that his PTSD symptoms have worsened. Specifically, the Veteran asserts that he has an impaired short and long-term memory, near constant panic attacks, once per week nightmares, depression, social isolation, unprovoked irritability, and an intermittent ability to perform activities of daily living. See 8/24/2018 NOD. After review of the relevant medical and lay evidence the Board finds that a rating in excess of 30 percent for PTSD, is not warranted. An April 2018 VA examination diagnosed the Veteran with PTSD. The Veteran’s symptoms were noted to include a depressed mood, anxiety, and difficulty in establishing and maintaining effective work and social relationships. The behavioral observation upon examination found that the Veteran was polite and cooperative. Additionally, he had a good mood and eye contact, a tearful affect, linear and logical thought processes, and no abnormal thought content. Further, the Veteran’s speech had a normal rate, tone, and volume, and the Veteran denied suicidal and homicidal ideation. Finally, the examiner opined that the Veteran had an 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 symptoms controlled by medication. See 4/16/2018 C&P examination. The most recent September 2019 VA examination diagnosed the Veteran with an unspecified trauma and stressor-related disorder. The Veteran’s symptoms were noted to include a depressed mood, anxiety, suspiciousness, and a chronic sleep impairment. Additionally, the Veteran had disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The behavioral observation upon examination found that the Veteran was cooperative and had good eye contact. Additionally, the Veteran had no signs of psychotic thinking or perceptual disturbances, and the Veteran denied suicidal and homicidal ideation. Finally, the examiner opined that the Veteran had an 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 symptoms controlled by medication. See 9/5/2019 C&P examination. Based on the totality of the evidence above, the Board finds that the Veteran’s condition most nearly approximates the criteria for a rating of 30 percent for the appeal period. In this regard, VA examinations generally showed that the Veteran was polite and cooperative. Additionally, he had a good eye contact and no abnormal thought content, psychotic thinking, or perceptual disturbances. Further, the Veteran denied suicidal and homicidal ideation. In addition, during the April 2018 and September 2019 VA examinations, the Veteran reported that he has close friends, is currently dating, and that the relationship is supportive. VA medical treatment reports, to include several mental status examinations from the period on appeal, generally showed that the Veteran was alert, attentive, oriented, and cooperative. Additionally, the Veteran had a good mood and eye contact, an appropriate grooming and energy level, a normal speech and thought content, and an intact memory, concentration, and language. Further, the Veteran had a fair judgment and insight, a coherent and goal directed thought process, and no psychosis, mania, or suicidal or homicidal ideation. See 2/21/2018 CAPRI, at page 8; see also 5/7/2018 CAPRI, at pages 2, 3, 4, and 5; 11/23/2019 CAPRI, at pages 7 and 58. After reviewing the relevant lay and medical evidence, the Board finds that the competent and probative evidence tends to support a finding of an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board finds that the preponderance of the evidence weighs against a higher rating. The Board recognizes the Veteran’s above-mentioned contentions regarding his worsening PTSD symptoms. See 8/24/2018 NOD. The Veteran is competent to make those assertions based on observable symptomatology and the Board finds the Veteran credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has considered these statements and finds that symptomology described is contemplated by the current 30 percent rating. The weight of the competent, probative evidence shows the Veteran’s symptomatology reflects a frequency, severity, and duration commensurate with the criteria for a rating of 30 percent disabling. In sum, after review of all the relevant competent medical and lay evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to a rating in excess of 30 percent for the Veteran’s PTSD. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 2. A compensable rating for malaria. The Veteran contends that a higher (compensable) rating is warranted for his service-connected malaria. Specifically, the Veteran asserts residual symptoms, such as headaches, loss of appetite, and dizziness. Additionally, the Veteran asserts that his symptoms could have been produced by his malaria medication. See 1/15/2020 Form 9. Pursuant to DC 6304, a 100 percent rating for malaria is assigned when there is an active disease process. Relapses must be confirmed by the presence of malarial parasites in blood smears. Thereafter, malaria is to be rated on the basis of residuals such as liver or spleen damage under the appropriate system. 38 C.F.R. § 4.124a, DC 6304. Turning to the relevant evidence, in May 2018, the Veteran underwent a VA examination for infectious diseases. The examiner indicated that the Veteran was diagnosed with malaria in March 1968. The examiner concluded that the Veteran did not have residuals attributable to malaria. It was noted that the parasite lab was negative for malaria and the disease was quiescent. The examiner also stated that the Veteran had symptoms attributable to malaria, such as intermittent headaches and generalized fatigue and muscle weakness, and that these symptoms impact his ability to work. These will be addressed in the remand section below. See 4/24/2018 C&P Examination; see also 5/5/2018 C&P Examination. Based on the evidence, the Board finds that the Veteran does not meet the criteria for a higher rating. Specifically, there is no evidence of a relapse of malaria, nor is there evidence of the presence of malarial parasites in blood smears. Additionally, there is no clinical evidence demonstrating either liver or spleen damage secondary to malaria, such that residuals of malaria could be rated under the appropriate system. As a layperson, the Veteran is competent to report his symptoms of headaches, loss of appetite, and dizziness, but he does not have the expertise to diagnose malaria. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The only competent medical evidence addressing this claim, the May 2018 VA examination, shows no active malaria and no relapse of malaria. This evidence is competent, probative, and worthy of weight as a medical doctor, considered relevant medical history, and conducted/interpreted diagnostic testing. performed the examination The evidence is not in equipoise as to this issue and the benefit of the doubt doctrine is not applicable. Based on the evidence, the Board finds that the Veteran’s symptoms more nearly approximate a noncompensable rating. Therefore, the Veteran’s claim for a compensable rating for malaria is denied. REASONS FOR REMAND 1. Entitlement to a separate rating for headaches as residuals of malaria. 2. Entitlement to a separate rating for fatigue/muscle weakness as residuals of malaria. The Veteran contends that he has headaches, loss of appetite, and dizziness as residuals of malaria. See 1/15/2020 Form 9. As mentioned above, the Veteran was afforded a VA examination in May 2018 for infectious diseases. The examiner indicated that the Veteran had symptoms possibly attributed to malaria, such as intermittent headaches and generalized fatigue/muscle weakness. See 5/5/2018 C&P Examination. However, the examiner did not provide a medical opinion as to whether the Veteran’s headaches and generalized fatigue/muscle weakness were residuals of his service-connected malaria. Therefore, in order to properly adjudicate this appeal, the Board finds that a remand is necessary to obtain a factually accurate, fully articulated, and soundly reasoned medical opinion. These matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. Document all requests for information as well as responses in the claims file. 2. After completion of step # 1, return the claims file to the examiner who conducted the May 2018 infectious diseases examination and authored the opinion. A copy of this remand request should also be provided. After a review of the claims file, the examiner must address: (a.) Whether it is as likely as not (50 percent or greater probability) that the Veteran’s headaches are a residual of malaria. If so, please report the frequency, severity, and duration of all related symptomatology and any functional impact. (b.) Whether it is as likely as not that the Veteran’s fatigue/muscle weakness is a residual of malaria. If so, please report the frequency, severity, and duration of all related symptomatology and any functional impact. If the May 2018 examiner is no longer available, then the claims file and the May 2018 examination report should be forwarded to another examiner of at least equal qualifications to obtain the requested opinion. A new physical examination is not required unless deemed necessary by the clinician. A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.