Citation Nr: 21024027 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-36 273A DATE: April 21, 2021 ORDER Entitlement to a rating for posttraumatic stress disorder (PTSD) of 50 percent, but no higher, from August 20, 2013 to June 22, 2018 is granted. Entitlement to a rating for PTSD of 70 percent, but no higher, effective June 23, 2018 is granted. Entitlement to service connection for an eye disability is denied. FINDINGS OF FACT 1. From August 20, 2013 to June 22, 2018, the severity, frequency, and duration of the Veteran’s symptoms resulted in occupational and social impairment with reduced reliability and productivity; it did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. Effective June 23, 2018, the severity, frequency, and duration of the Veteran’s symptoms resulted in occupational and social impairment with deficiencies in most areas; it did not more closely approximate total occupational and social impairment. 3. The Veteran’s refractive errors of the eyes do not constitute a disease or injury for VA compensation purposes; the Veteran does not have an acquired eye disability attributable to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating for posttraumatic stress disorder (PTSD) of 50 percent from August 20, 2013 to June 23, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a rating for PTSD of 70 percent, but no higher, effective June 23, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for service connection for disability manifested by loss of vision have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 4.9. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2005 to September 2009. The matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 and May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In relevant part, the November 2014 rating decision denied service connection for an acquired eye disorder. The May 2015 rating decision granted service connection for other specified depressive disorder and assigned an initial 30 percent rating, effective August 20, 2013. In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. The Board remanded the claims in March 2020 for further development, to include updating VA treatment records and obtaining examinations. A February 2021 rating decision increased the Veteran’s rating for a psychiatric disorder, now rated as posttraumatic stress disorder (PTSD) to 70 percent effective October 23, 2020. The Board finds substantial compliance with the remand directives and therefore another remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). INCREASED RATING 1. Entitlement to a rating for PTSD of 50 percent from August 20, 2013 to June 22, 2018 A May 2015 rating decision granted service connection for other specified depressive disorder and assigned an initial 30 percent rating, effective August 20, 2013. A February 2021 rating decision increased the Veteran’s rating for a psychiatric disorder, now rated as posttraumatic stress disorder (PTSD), to 70 percent effective October 23, 2020. The Veteran contends that his psychiatric disability warrants a rating in excess of 30 percent prior to October 23, 2020, and greater than 70 percent thereafter. During the January 2020 Board hearing, the Veteran testified that his service-connected other specified depressive disorder symptomatology had gotten worse since his last VA examination in May 2016. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Board concludes that the Veteran’s symptoms caused the level of impairment required for a disability rating of 50 percent, but no higher, from August 20, 2013 to June 22, 2018. The Veteran’s rating from June 23, 2018 forward is addressed in more detail below. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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 inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. VA treatment records from August and September 2013 reflect symptoms of sleep impairment; hypervigilance; poor concentration; loss of interest and motivation; repetitive thoughts; feelings of guilt; avoidance of others; angry outbursts; memory problems; avoidance of responsibilities; frequent dissatisfaction; decreased appetite; weight loss; thoughts of suicide, homicide, and self-injury; feelings of hopelessness and helplessness; problems with sexual intimacy; difficulty making decisions; loss of confidence; engaging in risky behaviors; and depressed mood. After engaging in treatment and medication, the Veteran reported he was less depressed, less irritable, and no longer despondent as he was in the past. See May 2014 VA treatment records. Mental status examination was within normal limits. The Veteran declined group therapy. The October 2014 VA examination was significant for depressed mood; anxiety; chronic sleep impairment; impatience; short temper; lack of motivation; no hobbies; reduced motivation; and intrusive memories. The Veteran reported nightmares in the past, and the present capacity to be in public. Upon mental status examination his mood was dysphoric, and his affect was congruent. He admitted to past suicidal ideation but denied any present suicide risk. In his May 2015 notice of disagreement, the Veteran reported inappropriate aggressiveness and having lost control of his thought processes and emotions. He also reported an impact on his employment. The May 2016 VA examination revealed symptoms of depressed mood and chronic sleep impairment. Mental status examination was within normal limits with fair memory and concentration. The Veteran described panic attacks as his heart pounding when he gets angry, and headaches. The Veteran reported he shoved his wife a couple of times during an argument, but there was no police involvement. He further reported being irritable with others and attempting college courses in Spring 2016 but was unable to finish them. The examiner assessed that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. VA treatment records in file dating from June 2016 to present indicate no complaints of mental health concerns until June 23, 2018 when a screen for PTSD was positive. The Veteran endorsed nightmares or unwanted thoughts, avoidance of others, hypervigilance, and numbness or detachment. However, he declined follow-up and indicated that he was “okay.” The Board notes that the Veteran indicated he stopped treatment with the VA due to shame. See January 2020 Correspondence. In summary, VA treatment records, the October 2014 and May 2016 VA examinations, and the lay statements of record show that, prior to June 23, 2018, the Veteran’s PTSD was manifested by symptoms associated with a 50 percent rating (impaired judgment, disturbances of motivation and mood, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships), and a symptom associated with a 70 percent rating (impaired impulse control). The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. The records indicate an improvement of his symptoms for the period he was enrolled in treatment and taking medications. The Veteran reported no psychiatric symptoms between June 2016 to June 2018, and despite his symptoms, was consistently employed. The Board notes that the Veteran expressed suicidal ideation prior to June 2018, which is contemplated by the 70 percent criteria and is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead, 29 Vet. App. at 19. However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 70 percent or 100 percent disability ratings. In September 2013 the Veteran denied suicidal ideation. Two months later he reported thoughts about suicide once weekly, which he reported was an improvement prior to his engaging in treatment. However, in subsequent records through the end of 2019, including the October 2014 and May 2016 VA examinations, the Veteran denied suicidal ideation. For this earlier period, the Board finds the evidence weighs against a finding that suicidal ideation was characteristic of the level of severity caused by the service-connected disability. There are no further indications of suicidal thoughts until the January 2020 VA examination when he endorsed “regular” passive suicidal ideation. As discussed further below, the Board grants a 70 percent rating for the service-connected PTSD for this later period. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating prior to June 23, 2018. The Veteran experienced occupational and social impairment with reduced reliability and productivity. Mental status examinations in VA treatment records and the October 2014 and May 2016 VA examinations indicate that the Veteran had intermittent altered mood with congruent affect but were otherwise within normal limits. In his May 2015 notice of disagreement, the Veteran reported his symptoms impacted his employment. The Board observes the record does not indicate any periods of unemployment due to his symptoms. While the Veteran did experience a symptom contemplated by a 70 percent rating—impaired impulse control—the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran’s remaining symptoms were either contemplated by or more consistent with a 50 percent rating. In short, after a review of the record as a whole, and resolving all reasonable doubt in favor of the Veteran, the Board finds the Veteran’s condition warrants a 50 percent rating from August 20, 2013 to June 23, 2018. However, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 70 percent rating prior to June 23, 2018. 2. Entitlement to a rating for PTSD of 70 percent, but no higher, effective June 23, 2018 Effective June 23, 2018, the Board concludes that the Veteran’s symptoms approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. The Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. As above, VA treatment records dated June 23, 2018 reveal a positive screen for PTSD. The Veteran endorsed nightmares or unwanted thoughts, avoidance of others, hypervigilance, and numbness or detachment. However, he declined follow-up and indicated that he was “okay.” A January 2020 statement from family member A.S. indicates persistent fear, anger, guilt, reduced lack of interest in sex, sleep apnea, feeling detached from family and friends, social isolation, four to five panic attacks weekly, hypervigilance, and an inability to feel positive. At the January 2020 Board hearing, the Veteran testified to a worsening of symptoms since the May 2016 VA examination and indicated not receiving treatment since 2016. He also reported that he was currently employed but had to switch to the night shift to avoid people. The October 2020 VA examination was significant for symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The veteran acknowledged he continued to experience regular passive suicidal ideation, but he denied having any current suicidal or homicidal ideation, plan, or intent. The Veteran did not endorse panic attacks. The veteran was future oriented during the examination and denied current thoughts of suicide. The examiner assessed that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In sum, VA treatment records, the October 2020 VA examination, and the lay statements of record show that the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating (impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a worklike setting); suicidal ideation; and inability to establish and maintain effective relationships). The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead, 29 Vet. App. at 19. However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. Except as noted above, the Veteran otherwise denied thoughts, intent, or a plan involving self-harm in existing treatment records. Further, the Veteran was future oriented during the October 2020 VA examination and denied current thoughts of suicide. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA treatment records and the October 2020 VA examination indicate that the Veteran had intermittent altered mood with congruent affect, but intact memory and thought processes. He modified his work shift to avoid contact with people, but he has been able to sustain employment throughout the appellate period. The October 2020 VA examination also indicated the Veteran has adequate relationships with his family but does not engage with others or enjoy hobbies. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied to that extent. However, the Veteran is granted a 70 percent rating effective June 23, 2018, which constitutes a partially favorable determination. 3. Entitlement to service connection for an eye condition The Veteran contends that he has had trouble with his eyes since he was exposed to fumes in a gas chamber during basic training. See January 2020 hearing transcript. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The evidence of record does not suggest that the Veteran has a current diagnosis of an acquired eye or vision disability. The Veteran’s service treatment records indicate that he sought treatment for worsening vision of nearby objects and blurred vision in September and October 2005. June 2006 STRs reflect diagnoses of astigmatism and refractive error (hypermetropia). Upon separation examination in August 2009 the Veteran’s corrected distant and near vision was 20/30 on the right and 20/20 on the left. The November 2020 VA examination diagnosed bilateral hypermetropia, a refractive error. Corrected visual acuity was 20/20 bilaterally. The examiner opined the claimed eye condition is less likely than not service related. The rationale was that there was no clinical objective evidence of residual ocular toxicity from prior exposures from gas chamber. In addition, the claimant’s refraction in 2005 is consistent with latent hyperopia and presbyopia. Both are congenital disorders of refraction. VA regulations provide that refractive errors do not constitute a “disease” or “injury” for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Therefore, service connection may not be allowed for refractive error of the eyes. See VAOPGCPREC 82-90 (July 18, 1990) (prohibiting service connection for refractive errors of the eyes unless such were subject to superimposed disease or injury which created additional disability). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The Board concludes that the Veteran does not have a current diagnosis of an eye condition for VA compensation purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert, 1 Vet. App. at 55. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Blevins, 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.