Citation Nr: 21010144 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-26 516 DATE: February 24, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to an initial rating of 70 percent, and no higher, for posttraumatic stress disorder (PTSD) with alcohol use disorder, prior to December 11, 2019, is granted. Entitlement to an initial rating in excess of 70 percent for PTSD with alcohol use disorder from December 11, 2019, is denied. FINDINGS OF FACT 1. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran has a low back disability etiologically related to an in-service injury, event or disease. 2. Prior to December 11, 2019 the severity, frequency, and duration of the Veteran’s symptoms of PTSD with alcohol use disorder have most closely approximated occupational and social impairment with deficiencies in most areas. 3. From December 11, 2019 the severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to an initial rating of 70 percent, and no higher, for PTSD with alcohol use disorder, prior to December 11, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to an initial rating in excess of 70 percent for PTSD with alcohol use disorder, from December 11, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2003 to May 2005 and from October 2005 to August 2007. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a June 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in October 2019. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In June 2019, the Veteran testified at a Travel Board hearing before a Veterans Law Judge who has since retired. In November 2020 the Board sent a letter offering a new hearing and there has been no response. Therefore, the Board will proceed to decide the appeal. A transcript of the hearing is associated with the claims file and has been considered along with all of the evidence in the claims file. In a July 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s PTSD with alcohol use disorder to 30 percent effective October 3, 2012 and 70 percent disabling effective December 11, 2019. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown above. See AB v. Brown, 6 Vet. App. 35 (1993). The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. Service Connection 1. Entitlement to service connection for a low back disability is denied. The Veteran contends that he has a low back disability that is directly related to his active service. Specifically, the Veteran testified that he injured his back while lifting weights and carrying a heavy backpack while stationed in Iraq. See June 2019 Board hearing transcript. To establish service connection for a disability on a direct-incurrent basis, the Veteran must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). See also 38 C.F.R. § 3.303. The evidence of record shows that the Veteran has a current diagnosis of degenerative disc disease of the thoracolumbar spine. See e.g., December 2019 VA examination. Therefore, there is evidence of a current disability. As to an in-service event, injury or disease, a review of the Veteran’s service treatment records does not reflect any symptoms, complaints or treatment for a low back disability. The Veteran was provided a post-deployment examination in July 2007. The post-deployment examination reflects that the Veteran’s health stayed about the same or got better during his deployment. Additionally, the Veteran reported that he did not develop back pain during his deployment and did not have back pain during the examination. The earliest indication in the record that the Veteran suffers from a low back disability is a September 2009 VA treatment record reflecting that the Veteran was treated for back pain. The Veteran was provided a VA examination in December 2019. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted the Veteran’s diagnosis of degenerative disc disease and opined that the condition was less likely than not incurred in or caused by the claimed in-service, event, or illness. As rationale, the VA examiner noted that there was no documentation of low back pain or injury during the Veteran’s active military service. The VA examiner further noted that a September 2009 VA treatment record reflects sudden onset of low back pain. Additionally, the VA examiner noted that there was no evidence of chronicity of care for a low back condition after military service until 2017. As such, the VA examiner concluded that the Veteran’s current low back disability is more likely related to the event leading to the 2009 emergency room visit. The only evidence indicating an association between the current low back disability and his active service are the Veteran’s own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a) (1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, the origin or cause of degenerative disc disease is not a simple question that can be determined based on personal observation by a lay person. It is not shown that the Veteran is qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of degenerative disc disease. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Hence, the Veteran’s lay statements are not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran’s current low back disability is directly related to his active service does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. After reviewing all evidence of record, the Board finds that the uncontradicted opinion from the VA examiner is the most persuasive evidence regarding the etiology of the Veteran’s low back disability. The examiner’s conclusion followed an extensive examination of the Veteran and a review of his claims file, as well as consideration of reported history; therefore, the December 2019 VA examination is afforded great probative weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that factors for assessing the probative value of a medical opinion include the medical expert’s access to the claims file and the thoroughness and detail of the opinion). The Board has also considered whether the Veteran is entitled to service connection for degenerative disc disease as a “chronic disease.” See 38 C.F.R. § 3.303 (b). Arthritis is included in the list of “chronic” diseases under 38 C.F.R. § 3.309 (a). The Board notes that the Veteran was diagnosed with degenerative disc disease in 2017, ten years after his separation from active service. However, the Veteran has not argued, and the record does not show, that he was diagnosed with arthritis or any other “chronic” disease listed under 38 C.F.R. § 3.309 (a) during service or within one year of separation from service. Therefore, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. The prolonged period from separation from service until 2017 without complaints and/or treatments for degenerative disc disease is evidence for consideration in determining continuity of symptomatology and weighs against a claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). In summary, the most probative evidence of record does not support a finding that it is at least as likely as not that there is a causal relationship between the Veteran’s current low back disability and his active military service. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Increased Ratings Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 2. Entitlement to higher initial ratings for PTSD. The Veteran seeks a higher initial rating for his service-connected PTSD with alcohol use disorder. The Veteran’s service-connected PTSD is rated as 30 percent disabling prior to December 11, 2019, and 70 percent disabling from December 11, 2019 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. The applicable rating period is from October 3, 2012, the effective date for the award of service connection for PTSD, through the present. See 38 C.F.R. § 3.400. Under Diagnostic Code 9411, and the General Rating Formula for Mental Disorders a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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 cause total occupational and social impairment. In rating mental disorders 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). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher prior to December 11, 2019 and 100 percent from December 11, 2019. Turning to the relevant evidence of record, VA mental health examinations, to include in October 2013, consistently reflect that the Veteran did not report hallucinations, delusions, or homicidal ideations. Additionally, the Veteran was fully oriented with good memory, insight and judgment. VA medical treatment records further reflect that the Veteran was anxious and depressed. An August 2013 VA treatment record reflects that the Veteran has some suicidal ideations. The Veteran was provided a VA examination in April 2014. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted the Veteran suffered from anxiety. Upon examination, the Veteran was alert, oriented, and his grooming was appropriate. The Veteran reported that he sleeps six to seven hours per night. The Veteran further reported depression and chronic anxiety. He reported poor concentration and memory and denied suicidal ideations and homicidal ideations. In the June 2015 Notice of Disagreement, the Veteran reported that his acquired psychiatric disorder significantly impacts his relationships and that he has trouble functioning socially and at work. He further reported anxiety, chronic difficulty sleeping, mild memory loss, suspiciousness, and panic attacks on a weekly basis. In a May 2019 statement, the Veteran’s spouse reported that the Veteran has nightmares one to two times per week that disturb his sleep. The Veteran’s spouse further reported that the Veteran has anxiety attacks three or more times a week, which cause the Veteran to cancel work meetings and cancel social events. During the June 2019 Board hearing, the Veteran reported panic attacks and nightmares that cause difficulty sleeping and focusing at work. The Veteran further reported that he continues to have suicidal ideations. The Veteran was provided a VA examination in December 2019. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported that he was recently married and that his wife complains about the Veteran’s anxiety, depression, and outbursts of anger. He further reported that he avoids crowded places and is hypervigilant. The VA examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideations. Upon examination, the Veteran was neatly dressed with good grooming and hygiene. He was cooperative and maintained appropriate eye contact. The Veteran’s thought process was logical and goal oriented and his mood was down with restricted affect. The VA examiner summarized the Veteran’s level of occupational and social impairment with reduced reliability and productivity. The Board concludes that the record supports a finding that the symptoms reported by the Veteran reflect an increase in the severity, frequency and duration of his symptoms such that a 70 percent rating was warranted prior to December 11, 2019. However, the record does not show the Veteran’s symptoms caused the level of impairment required for an initial disability rating of 100 percent at any time during the relevant period. The records relevant to the period prior to December 11, 2019, indicate that the Veteran’s symptoms are substantially the same as those he reported at the December 2019 VA examination, which was the basis for the previous grant of a 70 percent rating from December 11, 2019. Specifically, the Veteran’s VA medical treatment records reflect that he has consistent suicidal ideations. The Veteran also endorsed suicidal ideations at the June 2019 Board hearing. At the April 2014 VA examination the Veteran reported chronic anxiety and depression. In the June 2015 Notice of Disagreement, the Veteran reported that his acquired psychiatric disorder significantly impacts his relationships and that he has trouble functioning socially and at work. The Veteran’s spouse reported that the Veteran has anxiety attacks three or more times a week, which cause the Veteran to cancel work meetings and cancel social events. The Board, therefore, finds that a rating of 70 percent is warranted prior to December 11, 2019. With regard to the issue of entitlement to a 100 percent rating during the period on appeal, the record does not show that the Veteran had total occupational and social impairment during that period. He maintained a job through at least most of that period. At his most recent VA examination in December 2019, the Veteran indicated that he was currently working. The record does not show that the Veteran reported symptoms similar in severity, frequency, and duration to those enumerated in the rating criteria. He has not reported, and the record does not show, that he has gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; 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. In summary, the Board finds that the criteria for a rating of 70 percent, and no higher, have been met prior to December 11, 2019. Therefore, a 70 percent rating is granted prior to December 11, 2019. (Continued on the next page)   To the extent the Veteran seeks a rating higher than 70 percent the preponderance of the evidence is against the claim. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine 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.