Citation Nr: 21011916 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 07-13 278A DATE: March 3, 2021 ORDER A 70 percent from January 9, 2004 to December 10, 2007 and a 100 percent rating from February 1, 2008 for posttraumatic stress disorder (PTSD) is granted. An initial rating in excess of 10 percent for a left hand scar is denied. An initial rating in excess of 10 percent for a left forearm scar is denied. FINDINGS OF FACT 1. From January 9, 2004 to December 10, 2007, the Veteran’s PTSD manifested as an occupational and social impairment with deficiencies in most areas. 2. From February 1, 2008, the Veteran’s PTSD manifested as a total occupational and social impairment. 3. The Veteran has one scar that is painful, but not unstable, on the left hand. 4. The Veteran has one scar that is painful, but not unstable, on the left forearm. CONCLUSIONS OF LAW 1. The criteria for a 70 percent disability rating for PTSD from January 9, 2004 to December 10, 2007 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a 100 percent disability rating for PTSD from February 1, 2008 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 3. The criteria for a disability rating higher than 10 percent for a left hand scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804. 4. The criteria for a disability rating higher than 10 percent for a left forearm scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from June 1969 to April 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a May 2004 rating decisions. A July 2017 rating decision increased the Veteran’s left forearm and left hand scars to 10 percent each, effective March 16, 2009. The Veteran testified at a Board hearing before a Veterans Law Judge in September 2010 on the issues of entitlement to increased ratings for traumatic ulnar neuropathy, PTSD, scars, and service connection for a neurological disorder manifested by tremors of the upper and lower extremities; however, that Veterans Law Judge subsequently retired and is no longer employed by the Board. In October 2017, VA sent a letter to the Veteran informing him that the Veterans Law Judge was no longer with the Board and asking whether he desired to have another hearing. In November 2017, the Veteran responded that he did not wish to appear at another Board hearing. In April 2011 and March 2018, the Board remanded the above issues. In a November 2019 rating decision, service connection was granted for peripheral neuropathy of the bilateral lower extremities. As this is a full grant of the issue sought on appeal, the issue of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is not before the Board at this time. Increased Rating PTSD Based on an application for an increased rating received January 9, 2004, the Veteran is seeking a higher disability rating for his service-connected PTSD. The Veteran’s PTSD is rated as 50 percent disabling from January 9, 2004 to December 10, 2007 and 70 percent disabling from February 1, 2008 pursuant to 38 C.F.R. § 4.130, DC 9411. This diagnostic code provides that PTSD is to be rated under the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. During the period from December 11, 2007 to January 31, 2008, the Veteran was receiving a temporary total disability evaluation under 38 C.F.R. § 4.29. As the Veteran was receiving a full grant of benefits during this period, it is not on appeal and will not be discussed. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 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; 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 closes relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). To the extent that the medical evidence reflects diagnoses of other psychiatric disorders, where it is not possible to distinguish the effects of nonservice-connected conditions from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran’s service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Turning to the evidence, the Veteran was afforded a VA examination in September 2006. The Veteran reported worsening of symptoms including being less tolerant, more irritable, being more socially isolated and withdrawn, having greater problems with sleep, and thoughts of suicide. The Veteran stated that while he has been married to his wife for 20 years, he has trouble showing affection and he is not social or communicative with her. He stated he had a tense relationship with his teenage son. He stated he did not have any friends and his only social activity was attending counseling sessions. He stated the other people irritate him to the extent he thinks about “taking them out.” The September 2006 examiner noted the Veteran was not neatly dressed, had long unkempt hair, and bounced his leg continually throughout the evaluation. The Veteran’s mood was depressed and anxious. His affect was blunted, memory was moderately impaired. Attention, concentration, and impulse control were fair. In September 2010, a private physician, Dr. S.V.J., submitted a statement related to the Veteran’s current treatment. The doctor noted the Veteran’s PTSD was increasingly worse. The Veteran’s personal hygiene and appearance deteriorated. The Veteran was noted to get angry without provocation and was depressed. The examiner noted the Veteran got little sleep at night and had reoccurring nightmares. Dr. S.V.J. noted the Veteran experiences panic/anxiety attacks at least once per week, suffers from a diminished thought process, and is often disoriented and forgetful of names, dates, and places. The Veteran’s speech was slow and illogical. Also in September 2010, the Veteran’s counselor, Mr. I.R., from the Chicago Heights Vet Center submitted a statement. Mr. I.R. stated the Veteran only gets three to five hours of sleep despite his medication and is afraid of sleeping with his wife due to the nightmares. The Veteran continued to worry about death daily and had unexplainable panic attacks. The Veteran’s PTSD has resulted in a constricted range of affect, impairment of thought processes, low tolerance for conflict, short term memory loss, and unemployability. In December 2015, Dr. S.V.J. stated that the Veteran’s PTSD is chronic and severe and has rendered him unemployable. The doctor noted the Veteran’s medication had been doubled due to an increase in severity and has resulted in additional medical conditions as a result of his PTSD. Also in December 2015, Mr. I.R. of the Chicago Heights Vet Center submitted a statement that the Veteran’s PTSD results in re-experience of trauma avoidance/anti-social behaviors, and startled responses/bursts of anger. Mr. I.R. stated the Veteran continued to only get three to five hours of interrupted sleep per night. The Veteran’s intrusive memories were found to interfere with his ability to obtain satisfaction with life and function effectively. The Veteran was noted to be on guard at all times and did not have many friends. In February 2016, D.R., M.S.W, L.S.W., of the Chicago Heights Vet Center stated the Veteran’s symptoms of PTSD include recurrent, involuntary, and intrusive distressing memories of traumatic events; dissociative reactions; and persistent effortful avoidance of distressing trauma-related stimuli sine his return from Vietnam. The Veteran also was noted to exhibit hypervigilance, hyper arousal, anxiety, panic attacks, severe depressive episodes, sleeplessness, and anti-social behavior. In April 2016, the Veteran’s wife submitted a buddy statement. She said that although she has been married for 30 years, she feels like she is the widow of a Veteran. She stated that the Veteran sleeps very little and when he does sleep, he will wake up covered in sweat and screaming. She stated that the Veteran isolates himself because he is fearful that he will act out on someone because of his anger. She stated his PTSD has resulted in physical manifestations such as migraine headaches and leg tremors. Further, she stated she has witnessed severe panic/anxiety attacks. The Veteran was afforded a VA examination in October 2019. The Veteran stated he continued to experience intrusive thoughts, nightmares, and physical and psychological distress in response to certain cues. He actively avoids thoughts, feelings, or memories of his deployments. He noted a loss of interest in activities and was detached from others. The Veteran was hypervigilant and had an increased startle response. The Veteran denied suicidal or homicidal thoughts, but experienced recurrent thoughts of death. The examiner found the Veteran had symptoms of a depressed mood, anxiety suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The examiner found the Veteran’s symptoms of PTSD and depression are significantly interrelated and thereby it is impossible to differentiate what portion of the impairment is caused by each separate condition. In February 2019, Dr. R.D. of the Chicago Heights Vet Center stated the Veteran experiences anxiety, is easily agitated, hypervigilant, irritable, and prone to aggression. In October 2019, Mr. I.R. submitted a letter stating that while he was now retired, he and the Veteran continue to attend the same PTSD group. The Veteran continues to demonstrate isolation, anger, anxiety, startle response, paranoid ideation, sleep deprivation, and has very few friends. In January 2020, Mr. R.S. of the Gary Vet Center submitted a statement regarding the Veteran’s PTSD treatment. Mr. R.S. noted the Veteran has been attending weekly PTSD group sessions since November 2016. The Veteran has shared having nightmares, rage, insomnia, isolation, hypervigilance, and being easily startled. In July 2020, R.D., Director of the Chicago Heights Vet Center, submitted a letter. She noted the Veteran has been keeping scheduled appointments since 2001 and actively participates in weekly group and monthly individual counseling sessions. She stated the Veteran experiences hopelessness and hypervigilance. He has frequent intrusive thoughts and nightmares and continues to experience depression and nervousness. The Veteran is unable to express his feelings other than anger and sadness. Additionally, she noted the Veteran experiences frequent episodes of uncontrollable range and depression resulting in self-isolation. Affording the Veteran the benefit of the doubt, the Board finds the aforementioned evidence demonstrates an occupational and social impairment with deficiencies in most areas beginning January 9, 2004, the date of the application for increase, and continuing through December 10, 2007, the date of the Veteran’s temporary grant of a 100 percent evaluation for hospitalization. Specifically, the September 2006 VA examination indicated the Veteran experienced suicidal ideations, marked difficulty in adapting to stressful circumstances, and difficulty establishing and maintaining social relationships. Such symptomatology is consistent with a 70 percent rating. Accordingly, the Board finds that a 70 percent rating is warranted beginning January 9, 2004 and continuing through December 10, 2007. Prior to December 10, 2007, however, examinations and treatment records do not indicate that the Veteran’s symptoms rise to the severity, frequency, and duration required of a 100 percent rating. For example, at no point in the relevant appellate period was evidence found of persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name, nor was evidence of a similar type and degree of such symptoms found. Rather, the Veteran demonstrated no issues with activities of daily living or memory loss and did not show evidence of persistent danger of hurting himself or others. Thus, because the preponderance of the evidence is against a 100 percent disability rating prior to February 27, 2019, the benefit-of-the-doubt rule is inapplicable. From February 1, 2008, however, the Veteran’s symptomatology increased somewhat significantly in severity, so as to support a finding of total occupational and social impairment. The Veteran was experiencing panic attacks, memory loss, an inability to maintain relationships, depressed mood, and neglected his personal appearance and hygiene. The Board finds that, affording the Veteran the benefit of the doubt, this evidence demonstrates that a 100 percent rating for the period beginning February 1, 2008 is warranted. In sum, for the period prior to December 10, 2007, in light of the totality of the evidence and affording the Veteran the benefit of the doubt, a 70 percent rating, but no higher, is warranted. For the period beginning February 1, 2008, a 100 percent disability rating is warranted. Left hand scar The Veteran contends he is entitled to a rating in excess of 10 percent for his left-hand scar. For the reasons provided below, the Board finds a higher rating is not warranted. The Veteran’s left hand scar is rated as 10 percent disabling under DC 7804. Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable (frequent loss of covering of the skin over the scar) or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful, with a maximum 30 percent rating warranted for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, DC 7804, Note (1). If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, DC 7804, Note (2). Scars can receive separate evaluations under DCs 7800, 7801, 7802, and 7805, despite also being rated under DC 7804. See 38 C.F.R. § 4.118, DC 7804, Note (3). Turning to the evidence, upon VA examination in April 2009, the Veteran’s left hand scar measured 1.5 cm curvilinear. It was superficial with normal texture. There was no irregularity in features, no tenderness, no adherence to deeper structures, no underlying tissue loss, restriction on movement, or inflammation. Upon VA examination in June 2013, the Veteran’s left hand scarring was not painful or unstable. The Veteran’s scar was linear and measured 1.5cm. Upon VA examination in October 2019, the Veteran’s left hand scarring was found to be painful. After a review of the medical records, the Board finds that a rating in excess of 10 percent is not warranted. As noted above, DC 7804 awards a 10 percent rating for one or two scars that are unstable or painful. See 38 C.F.R. § 4.118, DC 7804. Therefore, a 10 percent rating is warranted in this case. A rating higher than 10 percent is not warranted, however, because the Veteran’s left hand scar is not manifested by three or more scars that are unstable and/or painful, nor does the Veteran have one or two scars that are both unstable and painful. Id. The Board has considered the Veteran’s disability under the other diagnostic codes pertaining to scars. However, his disability is not located on his head, face, or neck to warrant consideration under DC 7800; nor are the scars shown to be deep (associated with underlying soft tissue damage) or cover sufficient area to warrant consideration under DC 7801 or DC 7802. The Board also notes that the Veteran’s scars are not shown to have any disabling effects other than pain, of which is contemplated by the 10 percent rating assigned under DC 7804. Accordingly, DC 7805 is not for application in this case. Therefore, the other potentially applicable diagnostic codes do not assist the Veteran in obtaining a higher rating. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, including the reports of pain and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical records do not show, that the Veteran’s left hand scarring is manifest by three or four scars that are unstable or painful. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for left hand scarring. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Left forearm scar The Veteran contends he is entitled to a rating in excess of 10 percent for his left forearm scar. For the reasons provided below, the Board finds a higher rating is not warranted. The Veteran’s left forearm scar is rated as 10 percent disabling under DC 7804. Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable (frequent loss of covering of the skin over the scar) or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful, with a maximum 30 percent rating warranted for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, DC 7804, Note (1). If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, DC 7804, Note (2). Scars can receive separate evaluations under DCs 7800, 7801, 7802, and 7805, despite also being rated under DC 7804. See 38 C.F.R. § 4.118, DC 7804, Note (3). Turning to the evidence, upon VA examination in April 2009, the Veteran’s left forearm scar was painful to touch. The scar measured 2 x 0.2 cm. It was deep without scaling. There was no irregularity in features. Upon VA examination in June 2013, the Veteran’s left forearm scar was painful to the touch. The scar measured 3cm by 1 cm and was deep and non-linear. Upon VA examination in October 2019, the Veteran’s left forearm scarring was found to be 2 cm x 0.2 cm with underlying tissue damage. After a review of the medical records, the Board finds that a rating in excess of 10 percent is not warranted. As noted above, DC 7804 awards a 10 percent rating for one or two scars that are unstable or painful. See 38 C.F.R. § 4.118, DC 7804. Therefore, a 10 percent rating is warranted in this case. A rating higher than 10 percent is not warranted, however, because the Veteran’s left forearm scar is not manifested by three or more scars that are unstable and/or painful, nor does the Veteran have one or two scars that are both unstable and painful. Id. The Board has considered the Veteran’s disability under the other diagnostic codes pertaining to scars. However, his disability is not located on his head, face, or neck to warrant consideration under DC 7800; While the scar is shown to be deep (associated with underlying soft tissue damage), the scar does not cover sufficient area to warrant consideration under DC 7801 or DC 7802. The Board also notes that the Veteran’s scar is shown to have additional disabling effects to the Veteran’s ulnar nerve. The Veteran’s additional limitations of due to traumatic ulnar neuropathy are rated as 50 percent disabling under DC 8516. The Veteran’s remaining pain as a result of his left forearm scarring is contemplated by the 10 percent rating assigned under DC 7804. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, including the reports of pain and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical records do not show, that the Veteran’s left forearm scarring is manifest by three or four scars that are unstable or painful. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for left forearm scarring. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. (Continued on the next page)   The Board is grateful for the Veteran’s honorable service, and this decision is not meant to detract in any way from the Veteran’s service. Unfortunately, however, for the reasons and bases discussed above, the competent and probative evidence of record preponderates against a finding an increased rating for the Veteran’s service-connected left hand and left forearm scars. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.