Citation Nr: 21012386 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-21 296 DATE March 4, 2021 ORDER The claim for service connection for posttraumatic stress disorder (PTSD) is denied. The claim for an evaluation greater than 70 percent for major depressive disorder (MDD) is denied. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of PTSD. 2. MDD is manifested by occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are not met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for an initial evaluation greater than 70 percent for MDD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Navy on active service from April 1994 to November 1998, and in the U.S. Marine Corps Reserve with active duty service from September to November 1991. This appeal comes before the Board from a January 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted service connection for depressive disorder, not otherwise specified (NOS) and assigned an evaluation of 50 percent, effective in September 2010 and in which claims for service connection for PTSD, alopecia areata, headaches, left eye condition, sleep apnea, pes planus, cognitive disorder (also claimed as brain damage) as a result of exposure to radiation, and entitlement to TDIU were denied. In a May 2015 rating decision, the AOJ increased the evaluation assigned the service-connected MDD to 70 percent, effective in September 2010. Notwithstanding, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In an October 2018 decision and remand, the Board denied service connection for bilateral flat feet, a left eye condition, alopecia, and a cognitive disorder/brain damage due to radiation exposure, and remanded the issues of sleep apnea, headaches, PTSD; initial evaluation for depressive disorder NOS greater than 70 percent, and entitlement to TIDIU. Subsequently, the AOJ granted service connection for obstructive sleep apnea (OSA) and tension headaches in an April 2020 rating decision, evaluating the disabilities as 50 and zero percent disabling, respectively, effective August 20, 2010. TDIU was also granted, effective September 1, 2011. These issues are therefore no longer before the Board. The AOJ completed development concerning the issues presently before the Board, service connection for PTSD and an initial evaluation greater than 70 percent for the service-connected MDD. Such development having been completed, these claims are now again before the Board. The Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, however, the Veteran is already service connected for MDD, and so the claim for PTSD is considered only applying to that diagnosis. The Board finds that the AOJ has fulfilled the duty to notify and assist the Veteran in substantiating his claim for VA benefits, as prescribed in 38 U.S.C. §§ 5100, 5102, 5103, 5109A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). All identified and relevant records have been obtained or appropriate efforts to secure them have been undertaken, including as a result of the October 2018 remand. Adequate examinations, considering the evidence of record and including appropriate findings and rationales for claimed conditions were afforded the Veteran, including pursuant to the October 2018 remand. See 38 U.S.C. § 5103A(d), 38 C.F.R. § 3.159(c)(4), and McLendon v. Nicholson, 20 Vet. App. 79 (2006). Neither the Veteran nor his attorney have argued against a finding that the agency of original jurisdiction (AOJ) has not met its duty to assist. The Board thus finds that the AOJ has met its duty to assist and further remand is not required. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). To substantiate a claim of service connection for PTSD there must be (1) medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (1) a diagnosis of PTSD in accordance with American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5); (2) a link, established by medical evidence, between the current PTSD diagnosis and a stressor event in service; and (3) credible supporting evidence that the stressor occurred. 38 C.F.R. § 3.304(f). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the-doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran and his attorney argue that he has PTSD stemming from events that occurred during active service. The first is accidental exposure to radiation during an exercise while he was working as a Hawk missile system operator. The others occurred during his assignment to the USS RANIER (AOE-7) and USS TARAWA (LHA-1) including the collapse and death of a fellow shipmate in front of him; his break up of a fight at the end of his ship’s pier between two women, one having a knife; and his fiancé breaking up with him while he was underway. One of the women had a knife. However, while VA treatment records note the Veteran was treated for depression, anxiety and PTSD, VA examinations conducted in 2011 and 2012, and a 2013 private medical examination reflect the Veteran is diagnosed with depression and major depressive disorder. Observing that VA treatment records did show treatment for PTSD, the Board in 2018 remanded the claim for VA examination to rule out a diagnosis of PTSD. The subsequent 2019 VA examination found no diagnosis of PTSD that met the criteria of DSM-5 and no diagnosis of PTSD. The VA examination was conducted with examination of the Veteran and review of the claimed file, and the VA examiner demonstrated that review with references to the medical record. The VA examiner diagnosed depressive disorder and schizophrenia spectrum or psychotic disorder. The 2019 VA examiner explained that the Veteran did not meet the criteria for PTSD or for PTSD that meets the criteria of DSM-5. In addition, the VA examiner opined that the symptoms of the diagnosed MDD and psychotic disorders could be separated, the depressive disorder being manifested by depressed mood, insomnia, and loss of interest in activities; and the psychotic disorder being manifested by delusions, thoughts of grandeur and paranoia. There are no other findings, statements, or opinions finding that the Veteran is diagnosed with PTSD currently or throughout the time period under appeal. The preponderance of the evidence is against a finding that the Veteran has, during the pendency of this claim, had a diagnosis of PTSD. Absent a diagnosis of PTSD, service-connection for PTSD cannot be warranted. Accordingly, the benefit of the doubt rule does not apply; the preponderance of the evidence is against the claim; service connection for PTSD must be denied. Increased Evaluation Service connection for MDD was granted in the 2013 rating decision under appeal, and initially evaluated as 50 percent disabling, effective in September 2010. Subsequently, an initial evaluation of 70 percent was granted, effective in September 2010, which is the date the Veteran’s claim was received. The Veteran seeks a yet higher rating. The evidence does not support the Veteran’s contentions. Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a), 4.1. Separate Codes identify the various disabilities. See 38 U.S.C. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The evaluation of the same disability under several Codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). MDD is evaluated under 38 C.F.R. § 4.130, Code 9434, and applies the general rating formula for mental disorders under 38 C.F.R. § 4.130. This affords a 70 percent rating where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. See 38 C.F.R. § 4.130, Code 9411. VA treatment and examination and private assessment and examination records demonstrate treatment for symptoms of MDD during the pendency of this appeal. The Veteran reported receiving private treatment for his depression, and the AOJ attempted to obtain these records, to no avail. In 2013, the Veteran notified the AOJ that there was no additional evidence available from his private physician and has declined to authorize additional requests for these records. Thus, any such observations by the private physician are unfortunately not before the Board. In aggregate, VA examiners in 2011, 2012, and 2019 and private examiners in 2012 and 2016 document findings of persistent, severe and recurrent MDD meeting the criteria for the 70 percent evaluation currently in place. The 2019 VA examiner diagnosed an additional disorder, a psychotic disorder, which was opined to be distinguishable from the service-connected MDD. The 2019 VA examiner opined it was possible to differentiate the manifestations of the two disorders, in that symptoms of depressed mood, insomnia, and loss of interest in activities are manifestations of MDD whereas symptoms of delusions and thoughts of grandeur and paranoia are manifestations of the psychotic disorder. As to symptomatology warranted a 100 percent evaluation, the 2016 private examiner reported instances of inability to maintain minimal personal hygiene or perform activities of daily living. The 2012 VA examiner reported circumstantial, circumlocutory or stereotyped speech. The 2019 VA examiner reported delusional thinking, in that the Veteran believed he was being spied on by U.S. Air Force and that the U.S. Army poisoned him by prescribing sertraline. In addition, the Veteran reported seeing an unidentified flying object, aliens, Jesus and the devil in 2000 and 2001. Notwithstanding, the inability to maintain personal hygiene or perform activities of daily living was reported not as a constant or even frequent occurrence but an occasional manifestation. And, the report of impaired speech was only found to be present on one occasion over the course of this appeal. Moreover, there are no findings of gross impairment in thought processes or communication, grossly inappropriate behavior, disorientation to time or place or memory loss for his own name, his occupation, or the names of close relatives. Furthermore, no health care provider has found the Veteran to be a danger to himself or others. Finally, manifestations of visual hallucinations were not only reported as having occurred in the past, in 2001 and 2000, and not currently, but they may be distinguished from the manifestations of MDD. As above noted, the 2019 VA examiner diagnosed a psychotic disorder, which was distinguished from the service-connected MDD. Accordingly, symptoms of delusions, thoughts of grandeur and paranoia, such as the past hallucinations and current delusions and paranoia may not be attributed to the service-connected MDD. After careful review of the medical evidence, the Board finds the Veteran’s symptoms of chronic MDD do not meet the criteria for an evaluation greater than 70 percent. A 100 percent evaluation is not warranted. While the Veteran manifests significant limitations in his ability to maintain employment and social relationships—as the 70 percent evaluation assigned reflects—he is not totally disabled solely due to his service-connected MDD. He has expressed no suicidal or homicidal ideations with or without plan and intent; he has not demonstrated gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; and has not been found to be disoriented to time or place or to be a danger to himself or others, or to be unable to function in social and work settings solely due to his service-connected MDD. Rather, the record shows he provides primary care to his two children and is able to navigate the outside world sufficiently to do so. Accordingly, the assignment of an initial evaluation greater than 70 percent for MDD NOS is not warranted. The Board notes that the Veteran is in receipt of a total disability evaluation based on individual unemployability (TDIU), effective in September 2011. As such, the Board must consider whether a statutory grant of special monthly compensation on a housebound basis may be granted. See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Statutory SMC is payable pursuant to 38 U.S.C. § 1114 (s) where the veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. In the present case, the award of TDIU was based on the combined effect of his service-connected conditions. Hence, for SMC purposes, the award of the TDIU does not satisfy the requirement of a “service-connected disability rated as total.” Accordingly, the Board finds that the Veteran does not have a single disability that may be considered to have been rated as totally disabling, and the award of statutory SMC at the housebound rate must be denied under 38 U.S.C. § 1114 (s). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William H. Donnelly 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.