Citation Nr: 21009693 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-40 670 DATE: February 23, 2021 ORDER The claim of entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from October 15, 2014, is granted. The claim of entitlement to service connection for a traumatic brain injury (TBI) is granted. REMANDED The claim of entitlement to a rating in excess of 10 percent for service-connected migraine headaches from October 15, 2014, is remanded. The claim of entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected condition, is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s PTSD was manifested by total occupational and social impairment. 2. The Veteran’s TBI was incurred during active service. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to service connection for a TBI have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Marine Corps from July 2003 to February 2011. He received the Afghanistan Campaign Medal with one star, among other commendations. These matters come before the Board of Veterans’ Appeals (Board) from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in July 2019. A written transcript of that hearing has been prepared and is associated with the evidence of record. As discussed by the Veteran and his counsel during the Board hearing, the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), while raised by the record, is not before the Board at this time. The Veteran and his counsel explicitly explained that, at present, the Veteran prefers for his disability claims to be adjudicated under the applicable rating criteria, and not considered for entitlement to a TDIU. See Board Hearing Transcript; Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. The claim of entitlement to a rating in excess of 70 percent from October 15, 2014 for PTSD. The Veteran contends he is entitled to a rating in excess of 70 percent for his service-connected PTSD. Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is generally presumed to seek the maximum benefit allowed by law and regulation. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding – the evaluation of the same disability or the same manifestation of a disability, under different diagnostic codes – is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Each disability is viewed in relation to its history, 38 C.F.R. § 4.1, but, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). For increased rating claims, the appropriate period on appeal dates to one year prior to the date of the Veteran’s claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In this case, the Veteran was initially granted service connection for PTSD and for his migraine condition in an April 2011 rating decision, and he applied for an increased rating for those conditions in October 2014. As such, the appeal period for the Veteran’s PTSD claim is October 2013 to the present. Mental disorders are rated under the General Rating Formula for Mental Disorders (General Formula), pursuant to 38 C.F.R. § 4.130, and the Veteran’s PTSD is rated under Diagnostic Code 9411. Under the General Formula, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. The Board concludes that, in this case, the Veteran’s PTSD did more nearly approximate the level of impairment required for a disability rating of 100 percent throughout the period on appeal. VA and private treatment records, VA and private psychological examinations, and lay evidence of record show that during the period on appeal, the Veteran’s PTSD was manifested by symptoms associated with a 100 percent rating, such as by persistent danger of hurting self or others; intermittent inability to perform activities of daily living; gross impairment in thought processes or communication; and grossly inappropriate behavior. For example, during the period on appeal, the Veteran’s PTSD-related symptoms required emergency hospitalization and inpatient treatment and appeared to have contributed to a period of incarceration. In December 2013, the Veteran sought emergency treatment due to non-specific homicidal ideation and persistent anger, which had also resulted in a laceration to his hand when he punched a framed picture. He reported at that time he only took his mental health medication when he got “really angry” but had also used methamphetamines and alcohol prior to seeking emergency medical treatment. See December 2013 Loma Linda VA treatment records. The Veteran further testified to the Board in July 2019 that he resorted to substance use to self-medicate and address his PTSD symptoms. This testimony was corroborated by his medical treatment records as noted above as well as records beginning in May 2014, when the Veteran voluntarily obtained inpatient treatment after relapsing on methamphetamine. During this inpatient treatment, the Veteran was noted to have been depressed and angry in the weeks prior to his admission, and he admitted to experiencing paranoia and auditory hallucinations. His appearance was described as “somewhat disheveled” by evaluating staff, and he was noted to have poor insight and judgment. According to a February 2017 private psychological examination report completed by a psychologist with the initials J.A., the Veteran became “very agitated and profane” at one point during the evaluation, and he had to be calmed down by his spouse. This examiner noted that the Veteran was vague about the mental health treatment he was getting and was unable to note the name of his VA provider or identify all the medication he took. The Veteran reported having symptoms such as anger, paranoia (even prior to substance use), and anxiety, among other things. The Veteran also reported significant difficulty with his concentration and memory. The Board finds this examiner’s opinion to support a 100 percent disability rating for PTSD. In July 2019, the Veteran and his spouse provided competent, credible, and probative lay testimony to the Board regarding the Veteran’s PTSD. That testimony sufficiently indicated to the Board that the Veteran’s PTSD currently results in occupational and social impairment so severe that the Veteran has engaged in physical fights with friends and at one point physically struck an employer. From this testimony and other evidence contained throughout the Veteran’s VA treatment records, the Veteran frequently cycles between periods of unemployment due to his severe PTSD symptoms, and is highly distrustful of others, resulting in his heavy reliance on his spouse, especially in times of emotional dysregulation. In February 2020, the Veteran received a Review PTSD VA examination. This examiner diagnosed the Veteran with stimulant use disorder (moderate), in sustained remission and explained that the Veteran’s history of methamphetamine “use and abuse was likely a result of his PTSD and a means to attempt to not experience his symptoms thereof.” This examiner opined that the Veteran’s PTSD only caused “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 medication.” The Board finds this opinion entitled to reduced probative value as the examiner failed to consider or address extensive medical treatment evidence of record, such as the examination by Dr. J.A. in 2017, and failed to address lay evidence of record, such as that provided during the hearing before the Board, which tend to indicate much more severe PTSD symptoms. Considered holistically, the Veteran’s symptoms throughout the period on appeal more nearly approximate total social and occupational impairment as outlined above. As the most probative evidence of record shows total occupational and social impairment, the maximum 100 percent rating is warranted during the appeal period. Thus, the appeal is granted. 2. The claim of entitlement to service connection for a TBI. The Veteran contends that he incurred a TBI during active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran has a current disability that began during active service and is related to an in-service head injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A VA examination conducted in November 2014 reflects that the Veteran has a current diagnosis of a mild traumatic brain injury. Further, in March 2017, a private psychologist assessed the Veteran with a TBI, rule out post-concussive syndrome. Thus, the question becomes whether the current disability is related to service. On this question, the evidence is in approximate balance as to whether the Veteran suffered an in-service injury and resulting brain trauma. Weighing against the Veteran’s claim is that the Veteran’s service treatment records are silent for evidence of complaint or treatment for a head or possible brain injury. Further, at his separation, the Veteran denied having experienced loss of consciousness or head trauma during his service. At the same time, however, the Veteran complained of memory problems and the onset of severe headaches. See January 2011 service treatment records. In support of his claim, the Veteran submitted a buddy statement from an individual with the initials J.C.H. J.C.H. stated that he was deployed to Iraq with the Veteran in 2004 to 2005. He described that during a convoy, the Humvee in which J.C.H. and the Veteran rode hit an obstacle, causing a nitrogen tank to hit the Veteran in the head. See July 2016 email statement. The Veteran submitted his own lay statement regarding this incident, in which he described having lost consciousness following the blow to his head. In this statement, he asserted that after regained consciousness, he declined medical attention, citing Marine culture and his desire to not appear weak. Assorted other evidence of record shows that the Veteran has consistently reported this in-service injury to medical providers, and the Board finds his lay statements on this issue to be credible. The medical examinations of November 2014 and March 2017 both related the Veteran’s current TBI to his in-service head trauma. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current traumatic brain injury is related to his active service, and the head injury he sustained in Iraq. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a TBI is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The claim of entitlement to a rating in excess of 10 percent for service-connected migraine headaches from October 15, 2014, is remanded. The Veteran contends that his migraine headaches have worsened since his last examination, and that he is entitled to a disability rating in excess of 10 percent. The Veteran’s last VA examination regarding his migraine condition occurred in November 2014. During his hearing in July 2019, the Veteran asserted that he experienced bad headaches two to three times per week. Then, in August 2019, the Veteran reported to a private examiner that he had debilitating headaches only one to two times per month. Considering the allegations of the progression of the Veteran’s symptoms, and contradictory evidence regarding the severity of his condition, a new VA examination is warranted on remand. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 2. The claim of entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected condition, is remanded. The Veteran contends that he has erectile dysfunction (ED), possibly as a result of his TBI or PTSD, or as a result of the medication he takes for those conditions or another of his service-connected conditions, such as for his migraine headaches. The Board notes that there is some medical evidence of record to suggest that an erectile dysfunction could be related to psychiatric medication. See, e.g., private medical opinion by Dr. M.R. dated August 2019. However, it is not clear from the evidence of record whether the Veteran has a currently diagnosed condition, as the Board finds no examination of record to adequately address this issue. As such, the Board finds that remand is warranted to provide the Veteran with a medical examination regarding his claim. The matters are REMANDED for the following action: 1. Undertake any additional, appropriate development to obtain relevant, outstanding VA and private treatment records that are not already associated with the claims file. If any records are unavailable, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the Veteran should be documented in the record. 2. Schedule the Veteran for VA examinations (in-person or via the tele-system if deemed warranted) by appropriate clinicians to determine the severity, frequency, and duration of his service-connected migraine condition, and regarding his claimed erectile dysfunction. The entire record (including this remand) must be reviewed by the examiner(s). 3. Regarding the evaluation of the Veteran’s service-connected migraine condition, the examiner should: (a.) Provide a full description of the Veteran’s migraine condition and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should attempt to elicit information regarding the severity, frequency, and duration of the Veteran’s symptoms, including the frequency and severity of debilitating migraine headaches. (b.) The examiner should include a description of any objective medical evidence of worsening or progression of the migraine condition since the last VA examination and, if possible, provide an estimated timeframe during which any worsening occurred. 4. Regarding the Veteran’s claimed erectile dysfunction (also claimed as impotence), the examiner is asked to: (a.) Indicate whether the Veteran has a current diagnosis of erectile dysfunction. (b.) If the condition is present, state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the Veteran’s currently diagnosed erectile dysfunction originated during service or is otherwise etiologically related to the Veteran’s active service, to include as secondarily related to any one or more of the Veteran’s service-connected conditions, and to include as due to any medication prescribed to treat any service-connected condition. In this analysis, the examiner must discuss VA and private medical evidence of record suggesting a connection between the condition and medication use, as well as lay evidence of record regarding the condition. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for more definitive opinion(s). 5. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hart, 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.