Citation Nr: 21024426 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-40 760 DATE: April 22, 2021 ORDER Service connection for lupus is denied. An increased disability rating of 70 percent, and no higher, for posttraumatic stress disorder (PTSD) from November 15, 2011 to February 26, 2020 is granted. An increased disability rating of 100 percent for PTSD from February 26, 2020, forward, is granted. FINDINGS OF FACT 1. No relevant system injury or disease and no chronic symptoms of lupus were manifested during service; lupus was not manifested to a compensable degree within one year of service, and continuous symptoms of lupus were not manifested since service; the current lupus was manifested many years after service and is unrelated to service. 2. From November 15, 2011 to February 26, 2020, the PTSD disability picture approximated occupational and social impairment, with deficiencies in most areas, due to psychiatric symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, hypervigilance, social isolation, irritability, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. 3. From February 26, 2020, forward, the PTSD disability picture approximated total occupational and social impairment due to psychiatric symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or a worklike setting, an inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, and neglect of personal appearance and hygiene. CONCLUSIONS OF LAW 1. The criteria for service connection for lupus are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for an increased disability rating of 70 percent, and no higher, for PTSD are met from November 15, 2011 to February 26, 2020. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Criteria (DC) 9411. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for an increased disability rating of 100 percent for PTSD are met from February 26, 2020, forward. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from May 1989 to May 1994. This matter is on appeal from March 2012 and July 2012 rating decisions. In November 2016, the Veteran and J.P. testified at a Travel Board hearing before the undersigned. In July 2018, the Board adjudicated a number of issues on the merits, and remanded for Social Security Administration (SSA) records the reopened issue of service connection for lupus for initial consideration on the merits by the Agency of Original Jurisdiction (AOJ) and the issue of an increased rating higher than 50 percent for service-connected PTSD. Because AOJ obtained SSA records in March 2019 and considered the merits of the service connection appeal for lupus in April 2020, there has been compliance with the prior remand directives. While the case was in remand status, an increased rating of 70 percent was awarded for PTSD effective February 26, 2020; therefore, the increased rating issue for PTSD is presented as a “staged” rating of 50 percent or the early period and 70 percent from February 26, 2020. See September 2020 rating decision. The duties to notify and assist in this case have been satisfied. Neither the Veteran nor the evidence has raised any additional contentions regarding the duties to notify or assist. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 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). Service connection may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the current diagnosis of systemic lupus erythematosus (i.e., lupus) is listed as a chronic disease under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are applicable. 1. Service connection for lupus is denied. The Veteran generally contends that the current lupus is related to service. He seeks service connection on this basis. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that a relevant systemic injury or disease was manifested during service or that chronic symptoms of lupus were manifested during service. The service treatment records, which are complete, show no complaints, diagnoses, or treatment related to lupus. At the April 1994 service separation examination, all systems were clinically evaluated as normal, the serology test was nonreactive, and the urinalysis was negative. Because the service treatment records are complete, all potentially relevant systems related to lupus were clinically evaluated at service separation and determined to be normal, and a serology test and urinalysis were performed at service separation and shown to be nonreactive and negative, respectively, the Board finds that lupus is a condition that would have ordinarily been recorded during service, including at the service separation examination, had it been manifested during service; therefore, the lay and medical evidence generated contemporaneous to service, which showed no relevant in-service system injury or disease and no chronic symptoms of lupus is likely to reflect accurately the Veteran's physical condition, so is of significant probative value and provides evidence against a finding of lupus or "chronic" symptoms of lupus during service. As the weight of the evidence demonstrates no relevant system injury or disease or "chronic" symptoms of lupus during service, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) based on "chronic" symptoms in service are not met. The Board next finds that the evidence shows that symptoms of lupus were not continuous since service and did not manifest to a degree of ten percent within one year of service separation. The evidence shows that lupus was first diagnosed and treated in 2009, approximately 15 years after service separation. Considered together with the absence of a relevant in-service system injury or disease or symptoms of lupus during service, the 15-year gap between service and the onset and diagnosis of lupus is one factor that tends to weigh against a finding of service incurrence. As the weight of the evidence demonstrates no "continuous" symptoms of lupus since service, and no lupus symptoms manifested to a compensable degree within the first post-service year, the criteria under 38 C.F.R. § 3.303(b) for presumptive service connection based on "continuous" lupus symptoms or lupus symptoms manifested to a degree of ten percent within one year of service separation are not met. The Board further finds that the weight of the evidence demonstrates that lupus, which was first manifested many years after service, was not caused by or otherwise related to service. The weight of the evidence is against finding a relationship between the current lupus and service. In this case, a VA medical opinion was not obtained addressing whether any incident, event, or symptoms during service caused the current lupus because there were in fact no relevant in-service injury, disease, or symptoms to which the current lupus could be related. Any such opinion elicited in this case, where the facts establish no in-service injury, disease, or event including relevant symptoms, necessarily would be based on the inaccurate factual premise of an injury or disease lupus symptoms during service; therefore, such an opinion would be of no probative value. As such, direct and presumptive service connection for lupus may not be established. 38 C.F.R. §§ 3.303, 3.307, 3.309. Although the Veteran has asserted his belief that lupus was caused by service, he is a lay person and does not have the requisite medical expertise to render a competent medical opinion under the facts of this case regarding the etiology of lupus, when there was no relevant system injury or disease during service and lupus was not manifested until many years after service. Such diagnoses and opinions as to relationship involve unseen systems processes and disease processes that are largely unobservable by the five senses of a lay person, as well as an understanding of various body systems and the possible causes or etiologies of lupus, and involve making findings based on medical knowledge and clinical testing results. Consequently, the Veteran's purported opinion relating lupus to service is of no probative value. Thus, the weight of the evidence is against a finding that lupus was incurred in or was otherwise caused by active service. In consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against service connection for lupus, so the appeal must be denied. 2. An increased rating of 70 percent, and no higher, for PTSD is granted from November 15, 2011 to February 26, 2020 is granted. 3. An increased rating of 100 percent for PTSD from February 26, 2020, forward, is granted. PTSD is rated at 50 percent from November 15, 2011 to February 26, 2020, and at 70 percent thereafter, under the criteria at 38 C.F.R. § 4.130, DC 9411 for PTSD. Psychiatric disabilities like PTSD are rated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 50 percent rating is prescribed when there is evidence of 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). 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires evidence of 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; and memory loss for names of close relatives, own occupation, or own name. Id. In this case, the Board finds that the evidence is in equipoise on the question of whether the criteria for a 70 percent schedular rating for the increased rating period from November 15, 2011 to February 26, 2020 are met. Throughout the rating period, the PTSD disability picture approximated occupational and social impairment, with deficiencies in most areas, due to psychiatric symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, hypervigilance, panic attacks, social isolation, irritability, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. Difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation are all symptoms specifically contemplated by the schedular criteria for a 70 percent rating; therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 70 percent rating for PTSD are met for this portion of the rating period. 38 C.F.R. §§ 4.3, 4.7. The weight of the evidence is against a finding that the PTSD disability picture more closely approximates the criteria for the next higher 100 percent rating under DC 9411 from November 15, 2011 to February 26, 2020. PTSD symptoms are not of the frequency, severity, and duration contemplated by the schedular criteria for the 100 percent rating, and PTSD symptoms do not cause total occupational and social impairment at any time during the rating period. No psychiatric symptoms specifically contemplated in the 100 percent schedular rating criteria or symptoms of similar frequency, severity, and duration were demonstrated at any time during the increased rating period. At the 2012 VA examination, the Veteran reported that he had been medically retired from the post office for about a month because of lupus, was married for six years to his second spouse, lived with his spouse and three children/stepchildren, went to restaurants and the movies with his spouse approximately every other week, had pretty good relationships with his spouse and his three young children, attended church approximately every other week, and socialized with one or two friends about once a month. Treatment records relevant to this portion of the rating period are consistent with the findings shown at the 2012 VA examination. Because the 100 percent rating specifically contemplates total occupational and social impairment due to PTSD symptomatology, and the lay and medical evidence shows a degree of occupational and social impairment that is less than total during the period, the Board finds that the evidence showing that PTSD symptoms have not caused total occupational or social impairment throughout the rating period weighs against finding that the schedular criteria for a 100 percent rating are met or approximated for any period. The evidence is in equipoise on the question of whether the criteria for a 100 percent schedular rating for the increased rating period are met from February 26, 2020, forward. At the February 2020 VA examination, the PTSD disability picture approximated total occupational and social impairment due to psychiatric symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or a worklike setting, an inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, and neglect of personal appearance and hygiene. Although nearly all of the PTSD symptoms demonstrated by the Veteran for this portion of the rating period are contemplated by a 70 percent (or lesser included) schedular rating, and the symptom of neglect of personal appearance and hygiene is a symptom specifically contemplated by the 100 percent schedular rating criteria. Also, the Veteran then reported that he lived separately from his spouse for five years since being arrested for assault of his stepdaughter in 2015, which reflects a worsening of the Veteran’s social impairment since the 2012 VA examination. In consideration thereof, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 100 percent rating for PTSD are met for the portion of the rating period from February 26, 2020, forward. 38 C.F.R. §§ 4.3, 4.7. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Palmer, 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.