Citation Nr: 21022859 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 20-04 762 DATE: April 19, 2021 ORDER Entitlement to service connection for an eye disability is denied. Entitlement to service connection for residuals of a right broken ankle is denied. Entitlement to an earlier effective date prior to April 10, 2017 for service connection for PTSD is denied. Entitlement to an increased rating of 100 percent from April 10, 2017 to September 8, 2019 for PTSD is granted. FINDINGS OF FACT 1. The Veteran’s diagnosed refractive errors are not VA compensable disabilities; the weight of the evidence is against finding that the Veteran has any compensable eye disability superimposed on his refractive error that is related to service. 2. The preponderance of the evidence of record is against finding that the Veteran has had a diagnosed disability related to residuals of a broken ankle at any time during or approximate to the pendency of the claim. 3. The Veteran submitted an Intent to File for service connection for PTSD on April 10, 2017. 4. The Veteran’s PTSD symptoms amount to total occupational and social impairment throughout the entire appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for an eye disability are not met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for residuals of a right broken ankle are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The Veteran is not entitled to an earlier effective date for the grant of service connection for PTSD. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.400. 4. The criteria for a 100 percent disability rating for PTSD have been met as of April 10, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 to April 1993. These matters are on appeal to the Board of Veterans’ Appeals (Board) from an April 2018 rating decision. 1. Entitlement to service connection for an eye disability The Veteran contends he suffers vision loss due to his MOS in the Army working with lasers. In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court of Appeals for Veterans Claims has held that the requirement that a current disability be present is satisfied when a claimant has a disability at the time of a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The service records show the Veteran’s MOS in service was in special electronics device repair, and the evidence shows he worked extensively in research and development of night vision sensors. The service treatment records reflect regular eye consultations titled “ocular surveillance of laser and microwave/radiofrequency workers.” The documents note that the Veteran’s work is considered high risk and safety glasses are required. However, none of the consultations reflect any abnormality with the Veteran’s vision, nor do other treatment records or in-service physical examinations. The Veteran’s enlistment examination notes a one-centimeter lateral scar to the left eye, but no other accompanying diagnosis. Upon separation, his examination indicated 20/20 vision with no vision loss. Post-service treatment records reflect a February 2005 complaint of light-sensitivity to the eyes; however, this was accompanied by migraine symptoms and was assessed as a migraine. In August 2018 and March 2020, the Veteran complained of difficulty seeing up close, and requested glasses. The diagnosis was hyperopia, presbyopia bilaterally. Myopia, presbyopia, and astigmatism are refractive errors of the eyes. For purposes of entitlement to benefits, the law provides that refractive errors of the eyes are congenital or developmental defects and are not a disease or injury within the meaning of applicable legislation. In the absence of superimposed disease or injury, service connection is not be allowed for refractive error of the eyes even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303 (c), 4.9. Even acknowledging that the Veteran’s MOS posed a high risk of injury to the eyes, the evidence does not show in-service damage or vision change that would indicate that the refractive error of the eyes were subject to a superimposed disease or injury during service. As there is no other evidence of a currently diagnosed disability, the Veteran’s claim for service connection must be denied. 2. Entitlement to service connection for residuals of a right broken ankle The Veteran is seeking service connection for residuals of a right broken ankle he suffered in service. Regarding the first element of service connection, in a June 2017 physical therapy consultation for right hip pain, the Veteran reported that he “broke his ankle when in the Army many years ago, thinks it was on the right leg.” He continued to receive physical therapy throughout 2017, and at times mentioned his broken ankle and “catching” in the ankle. In November 2017, the Veteran reported pain in his right ankle that worsens with driving. He rated the pain a 2 out of 10. While there are a couple complaints of right ankle pain since service, the evidence does not reflect a current diagnosis related to a previous right ankle injury. The Board acknowledges the Federal Circuit’s holding in Saunders v. Wilkie, which stated that even in the absence of a presently-diagnosed condition, pain can cause functional impairment, and that in that situation, “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.” Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Thus, pain that results in a functional impairment in earning capacity can be considered a current disability for VA compensation purposes. However, the evidence simply does not indicate that the Veteran’s right ankle pain results in a functional impairment in earning capacity. Even if the Board were to find that functional impairment existed to constitute a diagnosis, there is no evidence of a broken ankle in service. The service records contain an October 1992 treatment record for complaint of pain to the bilateral ankles and left knee. The assessment appeared to be tendonitis of the knees and ankles; there is no mention of a broken ankle. While the Veteran is competent to relay his own recollections, given his equivocal statement that he “thought” it was his right ankle, the Board does not find this statement probative. In sum, as there is no probative evidence of a current diagnosed disability or an in-service incurrence, the Veteran’s claim is denied. 3. Entitlement to an earlier effective date prior to April 10, 2017 for service connection for PTSD The Veteran contends that the grant of service connection for PTSD should be earlier than April 10, 2017. The Board finds no basis to award an effective date earlier than April 10, 2017. In general, the effective date of the initial grant of service connection (unless a claim was filed within a year of separation from service), shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The Veteran submitted his Intent to File on April 10, 2017 and submitted his formal claim on June 26, 2017. The current effective date is April 10, 2017, which is the earliest allowable date under this general provision. 4. Entitlement to an increased rating of 100 percent from April 10, 2017 to September 8, 2019 for PTSD The Veteran was granted service connection for PTSD in an April 2018 rating decision rated as 70 percent disabling effective April 10, 2017. In a September 2019 rating decision, the rating was increased to 100 percent disabling effective September 10, 2019. Thus, the issue on appeal is an increased rating for the period from April 10, 2017 and September 9, 2019. PTSD is evaluated under VA's General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted 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; 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 when 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. As the United States Court of Appeals for the Federal Circuit has 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. Furthermore, 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). The Veteran has undergone two VA examinations for his PTSD. In his November 2017 examination, the Veteran was diagnosed with PTSD, opiod use disorder and polysubstance abuse disorder, both in full remission. The examiner opined that the Veteran’s diagnoses result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, though generally functioning satisfactorily with normal routine behavior, self-care, and conversation (associated with a 30 percent rating). The Veteran is twice divorced and lives with his current girlfriend on her farm. He has a son and stepson. He reported no friendships or social activities. He had been unemployed for four years and described interpersonal problems at work. He relayed previous suicide attempts and a psychiatric admission in 2006 for opioid addiction. In terms of symptomatology, the Veteran endorsed depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of mood and motivation, difficulty in establishing and maintaining relationships, obsessional rituals, and difficulty in adapting to stressful circumstances. He endorsed anhedonia and a desire to stay home and avoid crowds and people, and panic attacks 3 to 4 times per day. He had poor memory and poor judgment. He experienced nightmares and significant sleep impairment. He becomes easily angered and will throw things or yell. He endorsed auditory hallucinations. In a self-report evaluation, the reported symptoms were suggestive of severe depression making it extremely difficult to function. The examiner opined that the current level of severity of PTSD was moderate. The Veteran was residing with his girlfriend on his farm and assists her with farm chores. He has a good relationship with his teenaged son. He has not worked in four years as he cannot work with others. He also avoids crowds, has daily depression, elevated anxiety, and near daily panic attacks. He is on medication and in counseling. Overall, the examiner concluded he is socially and occupationally impaired. In his September 2019 examination, conducted by the same examiner, it was indicated that the Veteran experiences occupational and social impairment with reduced reliability and productivity (associated with a 50 percent rating). The examiner apportioned the PTSD as 70 percent disabling and a panic disorder as 30 percent disabling. The Veteran described financial stressors and familial conflict. He still experienced anhedonia, irritability, sleep impairment, and hypervigilance. Driving triggers intrusive thoughts. He endorsed a previous history of suicide attempts, with the most recent attempt a month prior. The examiner included VA treatment notes from 2019 in the report that reflect continued symptoms. The Veteran still lived with his girlfriend on a farm and had a good relationship with his sons. He maintained no friendships or social activities, and, while not employed, works on his farm. His listed symptoms were the same as the prior examination, with the addition of persistent delusions and hallucinations. He endorsed several triggers such as noise, crowds, driving, and hearing helicopters. He experiences terrible depression and irritability, with feelings of hopelessness and helplessness. He still experienced panic attacks 3 to 4 times a week with significant sleep impairment. He described his memory as “terrible” and has obsessional tendencies wherein he constantly rechecks the farm. He stated that his hygiene “comes and goes,” but he showers regularly most of the time. He has road rage and severe mood swings, and experiences daily auditory hallucinations. The examiner assessed his current level of severity as severe/significant and explained that his new diagnosis of panic disorder escalates his PTSD condition in severity. The Veteran has consistently received VA treatment for his mental health throughout the appeal period. In April 2017, the Veteran endorsed difficulty interacting with others, irritability, hypervigilance, and stated he does not like leaving the farm. In June 2017, he described difficulty maintaining jobs due to his irritability and difficulty interacting with others. In July 2017, he expressed that his depression and anxiety were taking a toll on his family, and that he has experienced suicidal thoughts and intrusive thoughts that impact his sleep. In August 2017, he described triggers of gunshots and helicopters. His medications were helping, but he still experienced several symptoms, including irritability, sleep impairment, and hypervigilance. While some treatment notes reflect the Veteran’s progress in attending his sons’ sports games and strengthening their relationship, in June 2018 he endorsed feeling overwhelmed by emotions and having brief suicidal thoughts. In September 2018, he endorsed insomnia, moderate anhedonia, irritability, mild panic attacks, continued hypervigilance, and some passive death wish thoughts. Overall, the evidence does not reflect a significant increase in symptoms between his 2017 and 2019 examinations; to the contrary, the Veteran’s symptoms remain severe throughout the appeal period. While the 2019 examination reflected the new diagnosis of panic disorder, the Veteran experienced panic symptoms in 2017 as well. In fact, in 2017 he endorsed 3 to 4 panic attacks per day, while in 2019 he endorsed 3 to 4 per week. He has consistently endorsed auditory hallucinations, suicidal thoughts, and an inability to interact with others sufficiently enough to maintain employment outside of working on his farm and helping on a neighboring farm. While the Veteran can maintain some relationships (i.e., with his girlfriend and children) and treatment records reflect progress such as attending games and traveling, the overall frequency, severity, and duration of his symptoms amount to total occupational and social impairment. In sum, the Veteran’s PTSD symptoms warrant a 100 percent rating throughout the entire appeal period. His claim is granted. L.M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.