Citation Nr: 21010817
Decision Date: 02/25/21	Archive Date: 02/25/21

DOCKET NO. 17-35 561
DATE: February 25, 2021

ORDER

Entitlement to service connection for a left shoulder disability is denied.

Entitlement to service connection for sleep apnea is denied.

Entitlement to service connection for residuals of a traumatic brain injury is denied.

Entitlement to service connection for tuberculosis is denied.

Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied.

Entitlement to service connection for bilateral hearing loss is denied.  

Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD), prior to April 28, 2016, and a rating higher than 70 percent thereafter, is denied.

Entitlement to an effective date earlier than April 28, 2016, for the grant of a total disability rating based upon individual unemployability (TDIU) is denied.

The claim for entitlement to service connection for heat stroke has been withdrawn.

FINDINGS OF FACT

1. The weight of the evidence is against a finding that the Veteran’s left shoulder disability had onset in service, arthritis of the left shoulder did not manifest to a compensable degree within one year of discharge, and a left shoulder disability is not shown to be causally or etiologically related to any disease, injury, or incident in service. 

2. Sleep apnea is not shown to have had onset in service, nor is it related to any aspect of service.

3. The Veteran did not have any residuals of a traumatic brain injury (TBI) in service and has not at any time during the pendency of this claim.

4. The preponderance of the evidence is against a finding that the Veteran has had tuberculosis or COPD at any time during or proximate to the pendency of the claim. 

5. The evidence weighs against a finding that the Veteran has been diagnosed with hearing loss for VA purposes. 

6. The evidence does not indicate that, prior to April 28, 2016, the Veteran’s service-connected PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas. 

7.  The record evidence does not indicate that, effective April 28, 2016, the Veteran’s service-connected PTSD resulted in total occupational and social impairment. 

8. The evidence shows that the Veteran’s service-connected disabilities did not preclude him from securing and following substantially gainful employment prior to April 28, 2016.

9. Prior to the promulgation of a final decision by the Board, the Veteran withdrew his appeal for entitlement to service connection for heat stroke.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a left shoulder disability have not been met.  38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 

2. The criteria for entitlement to service connection for sleep apnea have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303.

3. The criteria for entitlement to service connection for residuals of a TBI have not been met.  38 U.S.C. §§ 1110, 1154(b), 1131, 5107; 38 C.F.R. § 3.303.

4. The criteria for service connection for tuberculosis are not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 

5. The criteria for service connection for COPD are not met.  38 U.S.C. §§ 1110, 1117, 1118, 5107; 38 C.F.R. § 3.303, 3.317. 

6.  The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. 

7.  The criteria for entitlement to a disability rating greater than 50 percent prior to April 28, 2016, and greater than 70 percent disabling thereafter, for PTSD have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411.  

8. The criteria for an effective date prior to April 28, 2016 for the grant of entitlement to a TDIU on a schedular basis, and the criteria for referral for an extraschedular TDIU, have not been met.  38 U.S.C. § 1155, 5110; 38 C.F.R. §§ 3.321, 3.341, 3.400, 4.1, 4.15, 4.16.

9. The criteria for withdrawal of the claim of entitlement to service connection for heat stroke by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 2003 to May 2004, and from May 2005 to May 2008.

In June 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

A December 2015 rating decision on appeal confirmed and continued a previous denial of the claim for service connection for a left shoulder disability in a January 2015 rating decision on the basis that new and material evidence, had not been received to reopen the claim, the Board finds that the January 2015 rating decision did not become final.  VA treatment records and a September 2015 VA examination report were received within one year of the January 2015 rating decision and constitute new and material evidence.  Therefore, the January 2015 rating decision did not become final as to that issue and the claim currently before the Board do not require reopening before a determination can be issued on the merits.  See 38 C.F.R. § 3.156 (b) “[n]ew and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.”).

During the pendency of the claim for increased disability rating for PTSD, a September 2015 rating decision increased the disability rating from 30 to 50 percent effective March 1, 2015, the date the claim for an increased rating was received.  An evaluation of 100 percent was assigned because of hospitalization over 21 days from April 7, 2015.  An evaluation of 50 percent was assigned from August 1, 2015.  Thereafter, in a rating decision in January 2017, the Veteran’s disability rating for PTSD was is increased to 70 percent, effective April 28, 2016.  Because the increased ratings do not represent a grant of the maximum benefits allowable, the issue remains in appellate status.  AB v. Brown, 6 Vet. App. 35, 38 (1993).

It is valuable to note that the Veteran has already been found to be 100 percent disabled by VA and is receiving a 100 percent disability evaluation from the VA at this time, and since April 28, 2016.

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein.  38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “nexus” between the present disability and the disease or injury incurred or aggravated during service.  Horn v.  Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v.  Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v.  West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be “competent.”  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation.  See 38 U.S.C. § 1154 (b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996).  The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran’s favor.  See VAOPGCPREC 12-99.  The provisions of 38 U.S.C. § 1154 (b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder.  See Libertine, 9 Vet. App. at 522-23.  The provisions of 38 U.S.C. § 1154 (b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service.  Clyburn v. West, 12 Vet. App. 296, 303 (1999).

Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. §§ 3.307(a).  

When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303 (b).  To be “shown in service,” the disease identity must be established, and the diagnosis must not be subject to legitimate question.  Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b).  There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.  Walker, 708 F.3d at 1336.

Service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1) (VA has adopted an interim final rule extending this date to December 31, 2016).  In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Notably, laypersons are competent to report objective signs of illness.  Id. 

A “qualifying chronic disability” for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection.  38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B).

“Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification.  To fulfill the requirement of chronicity, the illness must have persisted for a period of six months.  38 C.F.R. § 3.317(a)(2), (3).  Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b).

The Board notes that, effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War veterans.  Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multi symptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are ‘medically unexplained chronic multi symptom illnesses’ as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii).  These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date.  See 75 Fed. Reg. 61,997 (Oct 7, 2010).

Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran’s own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. § 3.317(c).

The Board notes that the Veteran has previously been conceded exposure to environmental hazards during service in the Southwest Asia Theater of operations during the Persian Gulf War.  38 C.F.R. § 3.317(e). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

1. Entitlement to service connection for a left shoulder disability

The Veteran claims that he injured his left shoulder in service when he was thrown from a vehicle during an improvised explosive device (IED) explosion while stationed in Iraq.  

The competent evidence of record confirms that the Veteran has been treated for left shoulder pain and he has been diagnosed with rotator cuff tendonitis.

The Veteran’s military personnel records reflect that he served in Iraq during the Gulf War era and earned the combat action badge among other, among other decorations.  Therefore, the record shows that he was in combat.

The fact that he injured his left shoulder in service, during combat, is not in dispute.  However, there must still be medical evidence etiologically linking the Veteran’s alleged in-service left shoulder injury from so many years ago in service to the current left shoulder disability.  See Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997).  In short, 38 U.S.C. § 1154 (b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder.  See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996).

The service treatment records in 2003 and 2005 recorded complaints of right shoulder pain with a history of right shoulder injury.  The service treatment records contain no complaints, history or findings consistent with a left shoulder disability.

After service, treatment records since 2014 show complaints of left shoulder pain. Thus, the Veteran was not shown to have arthritis of the shoulder in service or within one year following discharge from service, as such, service connection cannot be established for arthritis on a presumptive basis.  38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309.

Here, following service discharge, there is no evidence of treatment for the left shoulder until many years after service discharge.  The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many, many, years after service is probative evidence against the claim.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.).  Accordingly, competent evidence linking the current disability to service is needed to substantiate the claim.

On the question of a nexus between the current left shoulder disability and service, the evidence is against the claim.

A VA examiner in September 2015, the Veteran complained of chronic intermittent achy left shoulder pain.  Reportedly, he injured his left shoulder due to a fall from truck while deployed in Iraq.  The examiner noted, however, that a review of the service treatment records showed that he injured his right shoulder during deployment.  There was no evidence of chronicity or recurrence of the right shoulder injury.  Following a review of the claims file and an examination of the Veteran, the examiner opined that the left shoulder rotator cuff tendonitis was less likely than not incurred in or caused by the claimed in-service injury, event or illness.  The examiner based the opinion on the finding that there was no evidence of a left shoulder injury while in service or within a year of separating from service.  There was no evidence of any left shoulder condition in the medical records prior to the 2014 VA disability claim.  Significantly, physical and radiographic examination of both shoulders was essentially normal.  The examiner further explained that rotator cuff tendinitis was usually an overuse injury and not usually associated with trauma, but rather due to advancing age.  Therefore, the Veteran’s left shoulder rotator cuff tendinopathy was most likely his age and overuse and not the result of an injury incurred during his military service.

The Board finds the VA examiner’s opinion to be highly probative.  The opinion was based on a thorough review of the claims file, including the service treatment records and examination of the Veteran, and the opinion is consistent with other evidence of record.  Moreover, the examiner provided adequate rationale for the opinion.  Accordingly, the VA examiner’s opinion is entitled to great probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Significantly, there is no competent medical opinion of record linking the current left shoulder disability to service.

The Board has considered the statements from the Veteran asserting that his left shoulder disability is due to service.  The Veteran is certainly competent to report as to the observable symptoms they experience and their history, but he cannot diagnose because of the medically complex nature of such a diagnosis.  Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship.  Id.  Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his in-service left shoulder injury is a matter that requires medical expertise to determine.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”).  The Board finds that the specific, reasoned opinion of the VA examiner of greater probative weight than the more general lay assertions in this regard.  The examiner has training, knowledge, and expertise on which he relied to form the opinion, and the examiner provided rationale for the conclusions reached.  As noted, there is no competent medical evidence that supports the claim.

Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against this claim, indicating a problem with the left shoulder that began many years after service with no connection to service.

In summary, there is no competent evidence of arthritis of the left shoulder, or any other disorder in service or within one year following discharge from service.  Thus, the provisions regarding continuity of symptomatology are not applicable.  See Walker, 708 F.3d at 1340 (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b).  Moreover, the most probative and persuasive evidence is against a finding that his current left shoulder disability is related to service. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied.

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran’s claim for service connection for a left shoulder disability.  As such, that doctrine is not applicable in the instant appeal, and the claim must be denied.  See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); See Gilbert, 1 Vet. App. at 54.

2. Entitlement to service connection for sleep apnea

The Veteran contends that service connection is warranted for sleep apnea.  He claims he was diagnosed with sleep apnea during service and was issued a machine for treatment.

The service treatment records contain no complaints, history or findings consistent with a sleep disorder or sleep apnea.  

After service, VA treatment records in 2014 reflect a history of mild sleep apnea diagnosed in 2006.  Reportedly, the Veteran was issued a continuous airway pressure (CPAP) machine at that time, but he did not have it because presumably it was lost due to multiple moves.  The clinician noted a significant weight gain since 2006, over 70 pounds.  A sleep study in October 2014 revealed sleep apnea.  He was subsequently issued a CPAP.  

The Board notes that the first documented evidence of sleep apnea is several years after the Veteran’s discharge from service.  In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well.  See Buchanan, 451 F.3d at 1336; see also Maxson at 1333.  To the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service and post-service treatment records.  Thus, the Veteran has not adequately shown that his present sleep apnea continued since service.  

Here, there is no competent and credible evidence of a nexus between the Veteran’s current sleep apnea and service.  The only evidence of record in support of such a nexus is the Veteran’s lay opinion.  To the extent the Veteran believes that his current sleep apnea is related to service, as a lay person, the Veteran does not have the specialized training sufficient to render such an opinion.  Jandreau, 492 F.3d at 1377.  The diagnoses and/or etiology of sleep apnea require medical testing and expertise to determine.  Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current claimed disorder, is a matter that requires medical expertise to determine.  Thus, the Veteran’s assertions regarding the diagnosis and etiology of sleep apnea, diagnosed many years after service, and service, are of little probative value.

To the extent that a VA clinician in 2014 noted a history of sleep apnea since 2006, a bare transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional is a VA or private physician.  LeShore v. Brown, 8 Vet. App. 406 (1995).

In this regard, it is important for the Veteran to understand that the post-service treatment records provide particularly negative evidence against this case.

A VA examination or medical opinion regarding the etiology of his currently diagnosed sleep apnea is not indicated as there is no suggestion that the Veteran’s current disorder may be associated with service.  Again, there is no competent evidence of sleep apnea in service or within one year following discharge from service.  Moreover, there is no competent and probative evidence to show that the Veteran was diagnosed and/or treated for sleep apnea, during or contemporaneous with service and no competent and probative evidence that his current disorder is  related to his service.  On this record, there is no basis to grant the claim.

Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for sleep apnea and that the claim must be denied.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-56.

3. Entitlement to service connection for residuals of TBI

The Veteran contends that he currently suffers from residuals of a TBI incurred in service.  He reported several injuries to the head during service, including injuring his head when he was thrown from a vehicle during an IED explosion while stationed in Iraq.  

It is very important for the Veteran to understand the PTSD and the residuals of TBI are two different disabilities, that sometime overlap in terms of the problems they can cause.

Concerning the Veteran’s report of a head injury in service (not PTSD, which has already been granted), the Board accepts the Veteran’s report of a head injury while stationed in Iraq as consistent with the circumstances of his combat service.  38 U.S.C. § 1154 (b).  Therefore, the Board has to now consider whether the Veteran currently suffers from any residuals of the head injury.  See Collette, 82 F.3d at 393.

It is important for the Veteran to understand that it is not enough merely to show relevant injury in service since there equally has to be chronic (meaning permanent) disability owing to that injury.  Under VA law, the cornerstone of a valid claim for service connection is that there must be competent and credible evidence of the present existence of the disability being claimed.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (“Compensation for service-connected injury is limited to those claims which show a present disability.”); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.:).  See, too, Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent and credible evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997); Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA’s adjudication of the claim).  See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim).

The service treatment records do not document residuals of TBI, and an organic disease of the nervous system was not shown in service or within one year following discharge from service.  Accordingly, competent evidence linking the current disability to service is needed to substantiate the claim.

The weight of the post-service evidence, however, establishes that the Veteran has not had any residuals of a TBI, or a TBI, at any time during the pendency of this claim.

The record contains a September 2014 treatment note in which the Veteran was screened positively for TBI by a nurse practitioner.  The Veteran reported a head injury in service from an IED explosion with loss of unconsciousness.  The Veteran endorsed multiple neurobehavioral symptoms, including irritability, memory, sleep and concentration problems.  There is no indication that the Veteran’s service treatment records were reviewed.  

On VA PTSD examination in August 2014, September 2015, November 2015, April 2016 and June 2017, following a review of the claims file and an examination of the Veteran, VA psychologists opined that the Veteran did not have subjective symptoms or any mental, physical or neurological conditions or residuals of TBI.  

On VA examination for residuals of TBI in July 2016, the Veteran reported three incidents of concussion while stationed in Iraq.  The first incident occurred while he was mounted as gunner and adjacent vehicle in front hit an IED.  He stated that  shrapnel hit his helmet knocking him back into the vehicle.  Reportedly, he lost consciousness for several hours and next recalls waking up with IV in arm later same day.  The second incident occurred when he fell off a truck and hit his head on the side of truck/ground.  He was briefly dazed.  No physical injuries to the head were noted and he did not seek medical attention.  The third injury was incurred when a center beam fell down and hit him on the head.  He again described being briefly dazed but denied loss of consciousness.  Reportedly, he incurred a laceration to the top of scalp and was bandaged by a medic.  

The Veteran complained of memory issues, irritability and headaches.  

It is again important for the Veteran to understand that such things as irritability can be caused by his PTSD.

The examiner noted that a review of the service treatment records showed that on service induction in December 2004, the Veteran reported a history of head injury with no loss of consciousness at the age 10 resulting in forehead laceration.  The service treatment records otherwise documented no head injuries or loss of consciousness and on physical exam/questionnaire dated in May 2005 and July 2005, the Veteran denied a history of head or loss of consciousness.  A post deployment health assessment in April 2004 did not reference possible TBI.  No history of TBI was elicited during periodic health assessment dated in October 2007.  

On examination, there were no complaints of impairment of memory, attention, concentration, or executive functions and judgment was normal.  Social interaction was normal.  Motor activity was normal.  The Veteran was oriented to person, time, place, and situation.  He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language.  Following a review of the claims file and an examination of the Veteran, the neurologist concluded that TBI could not be confirmed as having been incurred in service.  

In a subsequent addendum opinion report, the VA neurologist acknowledged that a September 2014 general screen for TBI was positive based on the Veteran’s answers to TBI questions.  Thus, the assessment was solely based on history provided by the Veteran.  The claims file was not reviewed.  In contrast, when the VA neurologist examined the Veteran and considered the medical evidence which failed to provide evidence of TBIs in service.  Furthermore, on screening questions that pertain to the Veteran’s claimed TBIs, the Veteran answered these questions in a manner that would indicate a TBI did not occur.  One of these screening questionnaires was a Post Deployment Health Assessment after the deployment in Iraq.  Therefore, a diagnosis of TBI was not appropriate.  

Initially, the Board notes that service connection for PTSD with anxiety, irritability, depression, sleep disorder, and memory loss, has been established.  Additionally, the Veteran has been diagnosed with migraine headaches, including migraine variants.  

Next, the Board weighs the September 2014 positive screening for TBI with the findings of the VA neurologist that posited no diagnosis of TBI.  The September 2014 treatment note appears to have been made by a nurse practitioner on the basis of the Veteran’s statements alone.  The Board finds the opinion of the VA examiner in to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran does not suffer from residuals of TBI.  The VA neurologist’s findings were based on a review of the evidence, including the service treatment records and examination report, which did not substantiate a finding that the Veteran suffers from any chronic residuals of the in-service head injury.  The examiner considered the complete record and the Veteran’s contentions, and provided an explanation as to why the evidence does not support a finding that his in-service head trauma resulted in no chronic residuals.  Additionally, the VA examiner provided reasoning that is supported by the record and is consistent with other evidence of record, including multiple PTSD examination findings throughout the appeal.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).  Accordingly, the opinion is of significant probative value.

The Board has considered the statements from the Veteran asserting that he currently suffers from residuals of TBI.  The Veteran is certainly competent to report as to the observable symptoms he experiences and their history, but he cannot diagnose TBI or any residuals thereof because of the medically complex nature of such a diagnosis.  See Layno, supra; Buchanan, supra; Jandreau, supra. The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship.  Id.  Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his in-service head injury is a matter that requires medical expertise to determine.  See Clyburn, 12 Vet. App. at 301

Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against this claim.

In summary, the Board finds that the weight of the evidence establishes that the Veteran does not have any residuals of an in-service TBI and has not at any time during the claims period.  The Board has considered his lay statements, but finds he is not competent to attribute the symptoms he experiences to a TBI.  

Moreover, the most probative and persuasive evidence is against a finding that his current headaches, neurobehavioral and/or cognitive complaints are residuals of a TBI or due to any other in-service event or injury.  Accordingly, the preponderance of the evidence is against the claim, and service connection is denied.

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran’s claim for service connection for residuals of a TBI.  As such, that doctrine is not applicable in the instant appeal, and the claim must be denied.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-56.

4. Entitlement to service connection for tuberculosis

The Veteran seeks service connection for tuberculosis because he had a positive skin test for tuberculosis in 2004 during service.

The service treatment records show that in June 2004, the Veteran had positive tuberculosis  purified protein derivative (PPD) test at 15 mm.  the Veteran did not manifest symptoms of cough, fever, hemoptysis or change in sputum.  A chest x-ray was negative.  He was treated with INH therapy for one year.  The remainder of the service treatment records and post-service treatment records do not reflect treatment for active tuberculosis or residuals therefrom.  

On VA examination in September 2014, the examiner noted that the Veteran had a positive skin test for tuberculosis without active disease in 2004.  He was diagnosed with latent tuberculosis and treated with INH for a year after he returned from Iraq in 2004.  Treatment was completed in June 2005.  Imaging studies of the chest were negative.  

On VA examination in November 2015, the Veteran reported shortness of breath whenever he walked one flight of stairs.  The examiner noted no cough.  He also related nasal wheezing. asthma.  The examiner noted no history of active tuberculosis and he never had a positive chest x-ray.  The examiner concluded that  the Veteran did not currently have tuberculosis or residuals of tuberculosis.  He had a positive skin test for tuberculosis which showed possible exposure to    tuberculosis.  Based on this positive skin test he was treated for one year with anti-tuberculosis medications.  He did not have at the time of the examination, nor had he ever demonstrated symptoms or objective clinical or radiographic evidence of    active tuberculosis.

The Veteran filed his claim of service connection for tuberculosis in 2014; however, there is no bright line rule prohibiting consideration of evidence dated prior to the claim, and the Board has considered such evidence.  Romanowsky, 26 Vet. App. at 293.

In sum, the Veteran has not had tuberculosis or related symptoms pertinent to that disability that caused impairment in earning capacity at any time during or proximate to the pendency of the claim.  Romanowsky, 26 Vet. App. 289 at 294; McClain, 21 Vet. App. at 321.

The preponderance of the evidence is against the claims of service connection for tuberculosis and the claim is denied.  The benefit-of-the-doubt doctrine is therefore not for application.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

5. Entitlement to service connection for COPD

The Veteran asserts that he has a respiratory disability due to his service.  Specifically, he argues that he has COPD that is related to exposure to burn pits and smoke during service in Southwest Asia.

As previously noted, the Veteran’s personnel records show that he had service in Southwest Asia during the Persian Gulf War.  

The service treatment records fail to document a chronic respiratory disorder, including COPD.  In a post-deployment assessment report, the Veteran reported difficulty breathing, dizziness, and chest pain during his deployment, along with  exposure to smoke from oil fire, smoke from burning trash or feces, exhaust from vehicles and truck, JP8 or other fuels, sand and dust, asbestos and industrial pollution.

After service, treatment records after 2014 complaints of shortness of breath.  In 2015 an assessment of COPD secondary to exposure to burn pits was noted.  A history of tobacco smoking from 1997 through 2003 was noted.  The Veteran continued to smoke one cigar a month since 2006.  Pulmonary function tests (PFTs) in July 2015 revealed evidence of small airway disease and he was prescribed bronchodilators.

On VA examination in November 2015, the Veteran reported shortness of breath related to physical activity.  The examiner noted that PFTs in 2015 indicated a mixed obstructive and restrictive pattern.  There was no significant improvement in flow post inhaled bronchodilators.  Even though the PFTs did not show responsiveness to bronchodilator medications he was prescribed bronchodilators. The examiner noted that there appeared to be conflicting medical evidence in this case.  The Veteran was assessed with COPD pursuant to the July 2015 PFTs which showed a mixed obstructive - restrictive, however, imaging studies of the lungs to include at that, including high resolution CT of the chest, were essentially normal.  The examiner indicated that it was significant that the Veteran had gained over 70 pounds since his discharge from the military and he was morbidly obese with a BMI of 40.2.  Such a restrictive pattern as seen on PFTs was explained by his morbidly obese body habitus.  The examiner concluded that the Veteran clearly did not have the contended COPD condition.  Given the available medical evidence the cause of the Veteran’s respiratory condition/symptoms was consistent with a lack of physical fitness and morbid obesity.  Accordingly, the examiner opined that COPD was less likely than not incurred in or caused by the claimed in-service injury, event or illness, including exposure to environmental hazards or burn pits during his military service in Southwest Asia.  The examiner reiterated that the Veteran’s abnormal PFT results were attributable to morbid obesity and not due to Southwest Asia environmental hazards or exposure to burn pits during his military service.  The examiner further explained that COPD was a constellation of symptoms and signs which were not exhibited by the Veteran. 

COPD is not a condition that resolves or goes away.  It is not clear what the basis was for diagnosing COPD in the past, though as explained by the VA examiner, there appears to have been confusion interpreting the PFT findings with an actual diagnosis.  As noted, the VA examiner in November 2015 the restrictive pattern on PFT was consistent and attributable to the Veteran’s morbid obesity, as opposed to COPD. 

In sum, the VA examiner opined that the Veteran does not have and never had COPD.  The Board finds this opinion probative, as the examiner supported his opinion with a clear explanation that was supported by the evidence of record and the examination results.  The Board notes that the Veteran has not objected to the conduct of the examination or the findings of this examiner, nor has additional evidence been received since the examination that contradicts or calls into question the results.  Accordingly, the November 2015 VA examination report and opinion outweigh the earlier VA clinician’s assessment of COPD without explanation of the basis for arriving at that conclusion.  Under these circumstances, service connection must be denied.  See Brammer, 3 Vet. App. 223 (generally observing that in the absence of proof of a current disability, there can be no valid claim).

In addition, although exposure to environmental hazards during service in the Southwest Asia Theater of operations has been conceded, she cannot establish service connection for an undiagnosed illness under 38 C.F.R. § 3.317, because there is no indication of an undiagnosed illness.  As noted, the VA examiner attributed the Veteran’s shortness of breath to obesity, which is not an undiagnosed illness or a medically unexplained chronic multisystem illness.

The preponderance of the evidence is against the claim of service connection for COPD and the claim is denied.  The benefit-of-the-doubt doctrine is therefore not for application.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

6. Entitlement to service connection for hearing loss

The Veteran claims that he currently suffers from bilateral hearing loss incurred in service.

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385.  For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  See 38 C.F.R. § 3.385.

“[W]hen audiometric test results at Veteran’s separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.”  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Id. at 157.

The service and post service treatment records do not indicate any complaints or diagnosis of hearing loss during service.  

On VA examination in August 2014, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 5, 5, 10, and 25, and in the left ear were 0, 0, 10, and 25.  The puretone threshold average in the right ear was 11 and in the left ear it was 9 decibels.  Speech discrimination was 100 percent in the right ear and 100 percent in the left ear.

On VA examination in November 2015, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 10, 10, 10, and 20, and in the left ear were 5, 5, 15, and 20.  The puretone threshold average in the right ear was 13 and in the left ear it was 11 decibels.  Speech discrimination was 100 percent in the right ear and 100 percent in the left ear.

Simply stated, while the Veteran’s hearing may not be what it once was, there is no evidence of hearing loss for VA purposes.

While the Veteran is competent to report difficulty hearing, he is not competent to assess whether he has disabling hearing loss for VA purposes.  Additionally, neither the Veteran nor representative has alleged, and certainly the medical treatment records do not show, that the Veteran’s disability has worsened in severity since the November 2015 VA examination.  See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007).  As there is no current diagnosis of hearing loss contained within the record, service connection is not warranted.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-56. 

Overall, the Veteran’s has made claims for some problems that he simply does not have.  This undermines the Veteran’s reliability as an historian of his problems with the Board and all his claims.

Increased Ratings

Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4.  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  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 entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009).

The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.”  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology.   

7. Entitlement to a rating higher than 50 percent for PTSD, prior to April 28, 2016, and rating higher than 70 percent thereafter

The Veteran contends that he is entitled to a rating higher than 50 percent for his service-connected PTSD prior to April 28, 2016, and rating higher than 70 percent thereafter.

The Veteran’s service-connected PTSD is rated under Diagnostic Codes 9411 which utilize General Rating Formula for Mental Disorders.  38 C.F.R. § 4.130.  Under that Formula, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although found to be generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as a depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, Diagnostic Code 9411.

A 50 percent rating is assigned 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 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); and the inability to establish and maintain effective relationships.

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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name.  

As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation.  Vazquez–Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed.Cir.2013).  The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’”  Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. 

Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “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.”  38 C.F.R. § 4.126(a).  

Initially, the Board notes that this claim for a higher rating was pending before the agency of original jurisdiction on or after August 4, 2014.  Therefore, the Board finds that the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (2013) (DSM-5) applies to the current appeal.  See 53 Fed. Reg. 14308 (March 19, 2015); 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130 (2017).  Accordingly, the Board’s adjudication of this claim cannot include any discussion of the Global Assessment of Functioning (GAF) scores found in the record.  See Golden v. Shulkin, No. 16-1208, Slip opinion at 5 (Vet. App. Feb. 23, 2018).

Initially, the Board notes that during the pendency of the claim for increased disability rating for PTSD, a September 2015 rating decision increased the disability rating from 30 to 50 percent effective March 1, 2015, the date the claim for an increased rating was received.  An evaluation of 100 percent was assigned because of hospitalization over 21 days from April 7, 2015.  An evaluation of 50 percent was assigned from August 1, 2015.  Thereafter, in a rating decision in January 2017, the Veteran’s disability rating for PTSD was is increased to 70 percent, effective April 28, 2016.  Concerning the period from April 7, 2015 through August 1, 2015, when the disability was assigned a temporary rating of 100 percent, as this period represents the maximum rating for PTSD, the period from April 7, 2015 through August 1, 2015, will not be further discussed.  See 38 C.F.R. § 4.30. 

With the above criteria in mind, the Board notes that VA treatment notes in September 2014, reports of frequent suicidal ideation with no plan.  It was noted that he had overdosed on prescription medication in 2006.  The Veteran was casually dressed and appeared to be well-groomed.  He maintained good eye contact throughout the interview and was polite and cooperative.  He was oriented to all four spheres.  The Veteran’s mood was good and his affect was appropriate.  The Veteran did not demonstrate any impairment in his thought processes or communication.  His speech was clear, fluent, and coherent.  His movements and posture were within normal limits.  There was no evidence of impairment of orientation, judgment, or concentration noted.  The Veteran exhibited fair management of impulsiveness and fair judgment.  He did demonstrate some level of memory impairment.  At that time, the Veteran was employed full time in a stable job.  The Veteran endorsed suicidal ideation with no plans.

On VA examination in August 2014, the Veteran reported nightmares, flashbacks, impaired sleep, irritability, hypervigilance, impaired concentration, anxiety, suspiciousness and impaired memory.  He had been married for 13 years.  He said the marriage had problems when he first got back from Iraq, but described it as stable at that time.  He resided with his spouse and their two children, ages 11 and 9.  The Veteran reported having a few friends and some hobbies.  He enjoyed building things.  The Veteran was employed by a defense contract company doing logistics.  He had held the job for 2.5 years and reportedly loved it.  He indicated that the fact that most of his co-workers were also Veterans made his job easier.  

On mental status examination, the Veteran was described as casually dressed and adequately groomed.  There was no psychomotor agitation or retardation.  He was pleasant, polite and cooperative.  His speech was fluent and coherent and his mood was stable.  Affect was appropriate and mood congruent he denied hallucinations or delusions.  Thought process was logical and goal directed.  The Veteran denied  suicidal or homicidal ideation.  He was alert and oriented in all spheres.  Attention was good.  The examiner opined that the Veteran’s psychiatric symptoms were productive of 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 submitted a claim for TDIU in March 2015.  He reported that he was last employed as a logistics manager on September 26, 2014.  The Veteran reported having completed four years of college.  He asserted that his PTSD impaired his ability to deal with people and large groups.  He described panic attacks and a lot of sweating.  He avoided elevators due to space limitations and crowding.  

In an August 2015 report, the Veteran’s former employer indicated that the Veteran was laid off due to staff reduction.  

On VA examination in September 2015, the examiner noted diagnoses of PTSD and bipolar disorder with symptom interaction.  The Veteran complained of re-experiencing event, avoidance of stimuli, irritability, anger outbursts, hyperarousal, mood swings, depressed mood, anxiety, startle response, hypervigilance, panic attacks that occur weekly or less often and chronic sleep impairment.  The examiner also noted mild memory loss, such as forgetting names, directions or recent events.  There were disturbances of motivation and mood, impaired concentration and difficulty in adapting to stressful circumstances, including work or a worklike setting.  The Veteran divorced his first wife and reported having remarried in July 2015.  He indicated that his marriage was going well.  The Veteran and his wife attended a relationship group with other Veterans and their spouses, and they indicated they would attend a couple’s weekend for Veterans and spouses.  They had two children, one son aged 10, and one daughter aged 12.  The Veteran enjoyed taking his daughter kayaking.  He liked having common interests with her.  The Veteran also had two children from his previous marriage.  He texted them once a week.  They lived in the same town as the Veteran.  The Veteran said his wife helped him with his medications and drove him to his appointments.  She also cooked for him.  The Veteran was laid off in August 2014.  He looked for work, but could not find anything.  Reportedly, he experienced a panic attack during a recent work interview.  

The Veteran was described as appropriately groomed.  There was no psychomotor agitation or retardation.  Attitude was cooperative and speech was fluent, coherent, not pressured.  His mood was anxious and affect was appropriate.  The Veteran denied hallucinations or delusions.  Thought flow was spontaneous, linear, logical and goal directed.  He denied suicidal or homicidal ideation.  The Veteran was alert and oriented to all spheres.  Impulse control was good.  His memory was intact.  Attention, judgment and insight were good.  The Veteran experienced panic attacks once a week on average.  Understanding, memory, sustained concentration and persistence, social interaction and adaptation were fair.  The examiner determined that the Veteran’s PTSD was productive of occupational and social impairment with reduced reliability and productivity. 

On VA examination in November 2015, the Veteran complained of re-experiencing stressor, avoidance of stimuli, hyperarousal, mood swings, depressed mood, anxiety, panic attacks that occurred more than once a week, disturbances of motivation and mood, impaired concentration, impaired sleep, irritability and anger outbursts, hypervigilance and startle response.  The examiner noted mild memory loss, such as forgetting names, directions or recent events.  The examiner also noted difficulty in adapting to stressful circumstances, including work or a worklike setting.  He continued to be treated for PTSD.  The Veteran resided with his second spouse and two children.  He said since the last examination, he blacked-out and wrecked his truck.  The Veteran was laid off in August 2014.  

The examiner described the Veteran as appropriately groomed with normal psychomotor activity.  Speech was fluent and coherent.  His mood was euthymic and affect appropriate.  He denied any hallucinations or delusions.  Thought flow was spontaneous, linear, logical and goal directed.  He denied suicidal or homicidal ideation.  The Veteran was alert and oriented to all spheres.  His memory was intact.  Attention, insight, and judgment were good.  The examiner noted panic attacks once a week on average.  Impulse control was good and there were no episodes of violence.  Understanding, memory, sustained concentration and persistence, social interaction and adaptation were described as fair.  The examiner opined that the Veteran’s psychiatric symptoms were productive of occupational and social impairment with reduced reliability and productivity.  

VA treatment notes in 2015 and 2016, generally reflect that Veteran was appropriately dressed and oriented in all spheres.  He exhibited no delusions or hallucinations.  The Veteran had full range of affect.  Thought content was appropriate and congruent to affect.  His speech was within normal limits with regards to flow, tone and clarity.  The Veteran was friendly and had good eye contact.  

In March 2015, the Veteran related having suffered a panic attacks during an interview that required taking the elevator.  In April 2015, the Veteran stated that his main support system was his fiancée.  He had a few good friends, and felt supported by his mother and his two siblings.  The Veteran endorsed past suicidal ideation.  The last suicidal ideation occurred three weeks earlier.  The Veteran denied any past homicidal ideation.  He complained of having a lot of panic attacks.  

In September 2015, the Veteran indicated that his spouse had to remind him to take his medications and take a shower.  She prepared his meals and drove him to his appointments.  

In August 2016, the Veteran indicated that he was in the process of adopting his fiancée’s two children, with whom he resided.  The Veteran reported increased interactions with his family and some increase in outside leisure activities including fishing trips with a friend.

On VA examination in April 2016, the Veteran complained of irritable behavior and angry outbursts, claustrophobia, isolation, night sweats, limited coping, low              frustration tolerance, hypervigilance, exaggerated startle response, problems with concentration, depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, impaired judgment and disturbances of motivation and mood.  The examiner noted mild memory loss, such as forgetting names, directions or recent events; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; difficulty in establishing and maintaining effective work and social relationships, and; difficulty in adapting to stressful circumstances, including work or a worklike setting.  The Veteran continued to reside with his fiancée and two children.  He maintained a good relationship with his two children from a prior marriage, although he did not see them as often as he would like.  The Veteran reported having a few friends, but he did not socialize much.  He did not go to many places, but his fiancée had some scheduled activities for him, such as volunteer work twice a week.  The Veteran had not worked since he was laid off in 2014.  He continued to search for jobs. 

The Veteran was described as casually dressed and adequately groomed.  Psychomotor activity was normal.  Attitude was pleasant, polite and cooperative.  Speech was fluent and coherent.  Mood was anxious and affect appropriate.  There were no hallucinations or delusions.  Thought flow was logical and goal directed.  There were no suicidal or homicidal ideation.  The Veteran was alert and oriented to all spheres.  Attention was good.  The examiner opined that the condition was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.

The Veteran was awarded disability benefits from the Social Security Administration (SSA) based on his claimed psychiatric disorder, effective August 2014.  June 2016 and May 2017 mental health evaluations in connection with the Veteran’s claim for SSA benefits, noted moderate risk for suicidal behavior.  Socialization was limited, although occasionally he did activities with fellow Veterans.  He described a close relationship with his mother.  His spouse assisted him with activities of daily living, including cooking, driving and managing finances.  The examiner noted severe PTSD.  

On VA examination in June 2017, the Veteran reported impaired sleep, avoidance of stimuli, self-isolation, recurrent intrusive memories, irritability, hypervigilance, exaggerated startle response, problems with concentration, depressed mood, anxiety, suspiciousness and panic attacks more than once a week.  The examiner noted near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; mild memory loss, such as forgetting names, directions or recent events; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social           relationships; difficulty in adapting to stressful circumstances, including work or a           worklike setting, and; impaired impulse control, such as unprovoked irritability with periods of violence.  The Veteran resided with his wife, whom he described as his caregiver.  She reminded him to tend to his hygiene.  She also handled finances, kept track of his medications and drove him to and appointments.  He described their relationship as ok, due to his self-isolation.  On the date of the examination, he was driven to the examination by a friend because he found driving to be too stressful.  The Veteran was laid off as a government contractor in August of 2014.  He described panicking when he got stuck in the elevator at his last employment, which he thought may be the reason he lost his job.  The examiner noted that the Veteran was very claustrophobic.  He applied for many jobs after that, but was able to acquire one.  He said he would get very anxious and irritable during the interviews.  Reportedly, he was turned down for jobs over the holidays due to being overqualified.  The examiner noted that the Veteran had an altercation with a treatment provider the previous year.  

The examiner described the Veteran as appropriately groomed with normal psychomotor activity.  Speech was fluent and coherent.  His mood was anxious and a little depressed, and affect appropriate.  He denied any hallucinations or delusions.  Thought flow was spontaneous, linear, logical and goal directed.  He denied suicidal or homicidal ideation.  The Veteran was alert and oriented to all spheres.  Attention was good.  Understanding was fair.  Sustained concentration and persistence, social interaction and adaptation were noted as poor.  The examiner opined that the Veteran’s psychiatric disorder was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  

In an August 2017 PTSD disability benefits questionnaire (DBQ), a private psychologist determined that the Veteran was unable to work.  The psychologist noted recurrent distressing dreams, impaired sleep, flashbacks, blackouts, difficulty concentrating, irritability, anger outbursts, exaggerated startle response, hypervigilance, anxiety and suspiciousness.  The psychologist noted panic attacks more than once a week; impaired memory; difficulty understanding complex commands; impaired judgment and abstract thinking; neglect of hygiene or personal appearance,  persistent danger of hurting self or others; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence, and; disorientation to time or space.  The psychologist found that the Veteran was severely disabled due to PTSD.  The psychologist opined that the condition was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  She further opined that the Veteran had experienced the same level of disability meeting the 70 percent criteria, since August 2014, and his PTSD precluded employment since that date.  

A VA clinician in October 2018, noted that the Veteran had been rated as unemployable but was seeking to work as much as possibly allowed.  He had started a job six months earlier as director of a public works municipality.  He managed approximately 15 employees.  The Veteran had taken up bowling and wood working.  VA treatment notes in November 2018 indicated that the Veteran reported working in a stressful job as a project manager.  He lashed out at work recently after a dispute with his boss.  He also related stress from his spouse having to drive him to work which was a long commute.  The Veteran planned to resign after the new year.  Clinical treatment notes showed that the Veteran complained of low back pain after helping a friend load a salt truck.  The records noted complaints of memory and concentration problems.  

In June 2019, a VA psychologist reported that the Veteran’s PTSD was exacerbated by his job location, resulting in impaired concentration, increased stress, irritability and fatigue.  His work environment exacerbated his impairment.  He experienced difficulty concentrating at work and managing employees.  It was recommended that he not return to his work environment as he was unable to work full time because the work environment exacerbated his PTSD.  Subsequent treatment notes show that the Veteran was fired and he was under investigation at work.  

Having reviewed the record evidence, the Board finds that, prior to April 28, 2016, the Veteran’s primary psychiatric symptoms were consistent with the 50 percent rating currently assigned for his service-connected PTSD.  At no time prior to that date is the disability picture of the Veteran’s PTSD one showing or suggesting occupational and social impairment with deficiencies in most areas (so as to warrant a 70 percent schedular rating).  While he did not drive due to anxiety and experienced weekly panic attacks, he maintained contact with friends and family members.  He also maintained good relationships with his wife, mother and siblings, as well as his children.  The Veteran and his wife attended a relationship group with other Veterans and their spouses, and they interacted in group activities and he did volunteer work on a weekly basis.  He enjoyed taking his daughter kayaking and went fishing with a friend.  Such level of responsible functioning (in his daily and domestic life, with family and in the community) is inconsistent with a finding of occupational and social impairment with deficiencies in most areas, and does not warrant a 70 percent schedular rating during this time period for service-connected PTSD.  The Board concludes that the medical findings on examination and treatment notes prior to April 28, 2016, are of greater probative value than the Veteran’s allegations regarding the severity of his psychiatric disability.  Thus, the Board finds that the preponderance of the evidence is against granting a disability rating greater than 50 percent prior to April 28, 2016, for PTSD.

As for the effect of the Veteran’s symptoms on judgment, thinking, or mood prior to April 28, 2016, mental status examination was consistently within normal limits.  There was no evidence of obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, or near continuous panic or depression, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, or any other symptoms reflective of a higher 70 percent rating.  Therefore, the Board finds that the disability picture presented by the Veteran’s PTSD does not warrant a 70 percent rating.  In this regard, the Board notes that “in the context of a 70 percent rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.”   Vazquez-Claudio, 713 F.3d at 118.

The Board acknowledges that the Veteran endorsed suicidal ideation prior to April 28, 2016.  However, aside from a few such notations, he consistently denied suicidal ideation(s), intent, or plan.  The facts of this case are distinguishable from Bankhead v. Shulkin, 29 Vet. App. 10 (2017) wherein the Court held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130).  Under the unique facts of Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period.  Bankhead, 29 Vet. App. at 19-23.  Here, apart from a few references, the Board notes that VA treatment records overwhelmingly reflect that prior to April 28, 2016, the Veteran mostly denied suicidal ideation.

This case is distinguishable from Bankhead because, unlike in Bankhead, a couple notations of suicidal ideation (passive or otherwise) during the relevant period by themselves or when considered with other symptoms, did not cause the level of occupational and social impairment associated with a 70 percent disability rating.  In contrast to Bankhead, in many other instances during the relevant period, the Veteran reported not having such ideation or thoughts.  On this basis, the Board finds that the preponderance of the evidence weighs against a finding that suicidal ideation represents the level of disability manifested during this period.

To the extent that the medical opinion from the private psychologist in August 2018 indicates that the Veteran’s psychiatric symptoms and limitations existed prior to April 28, 2016, as noted above, there is no question that the Veteran’s PTSD was productive of impairment prior to April 28, 2016, which is the basis for the currently assigned 50 percent disability rating.  To the extent that it is suggested that the opinions retrospectively (the evaluation of a problem in the past is always highly multifarious and provide great challenges to the Board) support a finding that the Veteran’s psychiatric impairment was as severe prior to April 28, 2016 as it was thereafter, the contemporary medical evidence as detailed above, clearly contradicts that contention.

As such, the opinion from the private psychologist, and purported retrospective opinion regarding the nature and severity of the Veteran’s symptoms and their functional impact prior to April 28, 2016, is afforded little probative value.  

The Board next finds that, effective April 28, 2016, the date of a VA examination, the Veteran’s service-connected PTSD presents a disability picture consistent with occupational and social impairment with deficiencies in most areas, as contemplated by the criteria for a 70 percent rating.  The Board finds that total occupational and social impairment, which would warrant a 100 percent rating for the Veteran’s service-connected PTSD, is not shown during this time period.  Significantly, none of the examiners or private clinicians who examined the Veteran determined that his psychiatric symptoms were productive of total social and occupational impairment.  At most, the Veteran’s psychiatric disorder was characterized as productive of occupational and social impairment reduced reliability and productivity.  The Veteran’s own statements of his condition do not always support the 70% evaluation, let alone the 100% evaluation.

In sum, although the Veteran endorsed problems with impaired sleep, anxiety, depression, hypervigilance, insomnia, panic attacks, memory and concentration problems, panic attacks, avoidance of stimuli, anger, irritability, nightmares, and some suicidal ideation, the preponderance of the probative evidence is against a finding that the Veteran’s psychiatric symptomatology more nearly approximated total occupational and social impairment, such that a schedular 100 percent rating is warranted.  

The Board has considered the contentions from the Veteran and his spouse regarding the severity of his psychiatric disorder; however, the objective clinical findings outweigh the subjective assertions of the Veteran as to whether he has total social and occupational impairment due to his psychiatric disorder.  

Taken together, the Board finds that the Veteran’s level of functioning effective April 28, 2016, is inconsistent with a finding of total occupational and social impairment and a schedular 100 percent rating for his service-connected is not warranted for this time period.  In summary, the Veteran’s symptoms reflect no more than moderately severe difficulty in social, occupational, or school functioning.  As such, the 70 percent rating adequately compensates the Veteran for his symptomatology.  In other words, the Board finds that the criteria for a disability rating greater than 70 percent effective April 28, 2016, for PTSD have not been met.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

8. Entitlement to an effective date earlier than April 28, 2016, for the grant of a TDIU

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after a final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.

A specific claim in the form prescribed by the Secretary of VA must be filed for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C. § 5101 (a).  Prior to March 24, 2015, informal claims were recognized.  Any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim.  38 C.F.R. § 3.155.  An informal claim must identify the benefit sought.

VA law provides that the effective date of an award of increased compensation, which include TDIU, shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later.  38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98. 

The Veteran contends that he is entitled to an effective date earlier than April 28, 2016, for the grant of a TDIU based on the contention that his service-connected PTSD rendered him unemployable prior to that date.

On his March 1, 2015 Application for Increased Compensation Based on Unemployability, he stated that he became too disabled to work and last worked full-time on September 26, 2014.  

In an August 2015 report, the Veteran’s former employer indicated that the Veteran was laid off on September 26, 2014, due to staff reduction.  

Therefore, the relevant period for consideration for a TDIU starts on March 1, 2015 through April 28, 2016, when the Veteran was granted a 70 percent disability rating for PTSD.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

Prior to April 28, 2016, service connection was in effect for 

•	PTSD, evaluated as 50% disabled; and 

•	Tinnitus, evaluated as 10% disabled.

The Veteran’s combined disability evaluation prior to April 28, 2016, was 60 percent.  Because the threshold minimum schedular requirements for consideration of entitlement to a TDIU have not been satisfied, the Board need not proceed to the unemployability portion of the schedular TDIU analysis.  Thus, entitlement to a TDIU on a schedular basis under 38 U.S.C. § 4.16 (a) is denied.

Where the schedular requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  Such claims should be submitted to the Director of Compensation Service for extraschedular consideration.  See 38 C.F.R. § 4.16 (b) (interpreting 38 U.S.C. § 501).

The evidence shows that the Veteran attained a bachelor’s degree in business finance and two associate degrees in industrial technology and another unspecified one.  After service, the Veteran worked as a logistics manager from January 2010 to January 2012, as an operations supervisor from January 2012 to January 2013, and as a logistics senior analyst from July 2013 to August/September 2014.  Prior to that he reported serving as a sergeant in the U.S. Army from 1998 to January 2010.  

On VA examination in September 2015 and November 2015, the examiners determined that the Veteran’s PTSD was productive of occupational and social impairment with reduced reliability and productivity.  

During the period in question, the Veteran continued to seek employment and attended several interviews.  Reportedly, he avoided taking the elevator when he was interviewed by his former employer, and arrived sweaty and agitated to the interview after taking the stairs.  The Veteran reported that he did not do well on these interviews because of anxiety.  

VA examiners in August 2014 and November 2015, opined that the Veteran’s tinnitus did not impact ordinary conditions of daily life or the Veteran’s ability to work.

The evidence shows the Veteran was awarded disability benefits from the SSA due to his psychiatric disorder.  Reportedly, he became too disabled to work in August 2014.  However, an SSA award is not controlling as to his TDIU claim.  SSA benefits are based on different criteria than are VA disability benefits.  

Based on the above, while the Veteran clearly had problems (this is not in dispute), the Board finds that referral to the Director of Compensation Service for extraschedular consideration prior to April 28, 2016, is not warranted.  Although the Veteran’s service-connected disabilities were productive of some occupational limitations, the objective medical evidence, to include VA examination reports, did not support a finding that the Veteran’s service-connected disabilities, separately or combined, precluded his employment.  The VA examiners addressed the question of employability directly and their opinions are consistent.  Moreover, the VA examination opinion reports, as outlined above, fail to show that the Veteran’s service-connected disabilities either singularly or jointly, precluded the Veteran from gainful employment, and collectively provided evidence against this finding.  Crucially, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough.  The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  In determining employability, the Veteran’s level of education, special training, and previous work experience is for consideration.  The Board is not persuaded that given the Veteran’s level of education, special training, and previous/current work experience, his disabilities rendered him unemployable prior to April 28, 2016. 

The Board acknowledges lay statements from the Veteran addressing the impact of his service-connected disabilities on his ability to work during the period of the appeal.  No one is suggesting the Veteran’s service-connected disabilities did not cause the Veteran many problems prior to April 28, 2016.  If he did not have issues with his service-connected problems, there would be no basis for compensable evaluations for these disabilities.  While the Veteran is competent to report symptoms he experiences, an opinion as to the limitations on gainful employment due to his service-connected disabilities (and not his age or nonservice-connected problems) is beyond his medical expertise.  See Jandreau, supra.  Thus, any such lay statements regarding him being unable to work are not competent or sufficient.  Simply stated, both the best factual evidence, including occupational history reported by the Veteran, and the best medical evidence, in the form of the examinations cited above, provides evidence against this claim.  In fact, some (but not all) of theevidence reviewed does not support the current evaluations. 

Accordingly, the Board concludes that referral of this issue for extraschedular consideration of TDIU pursuant to 38 C.F.R. § 4.16 (b), for the period starting March 1, 2015 through April 28, 2016, is not appropriate, and that a TDIU is not warranted.

9. Entitlement to service connection for heat stroke

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by her or her authorized representative, and except where withdrawn on record at a hearing, must be in writing.  38 C.F.R. § 20.204.

With regard to the appeal of entitlement to service connection for heat stroke, the issue was withdrawn on record by the Veteran at her Board hearing in June 2020.  The Veteran’s oral statement during his hearing, memorialized in writing in the transcript, satisfies the requirements for the withdrawal of a substantive appeal.  See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993).  There remain no allegations of errors of fact or law for appellate consideration as to that issue.  Accordingly, as to the claim for entitlement to service connection for heat stroke, the Board does not have jurisdiction to review the appeal and it is dismissed.

 

John J. Crowley

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Azizi, T.

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.