Citation Nr: 21025655 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-34 676 DATE: April 28, 2021 ORDER Entitlement to a 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for a neck disability is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s PTSD more nearly approximated the criteria for a 70 percent rating, causing occupational and social impairment with deficiencies in most areas, but not total social and occupational impairment. 2. The Veteran’s neck disability was at least as likely as not incurred during service. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria to establish entitlement to service connection for a neck disability have been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from August 1966 to August 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).  This matter was previously before the Board in December 2018 and September 2020. The case was returned to the Board for appellate review in December 2020. During the pendency of the appeal, a November 2020 rating decision increased the Veteran’s disability rating for PTSD to 70 percent effective October 6, 2020. As higher ratings are potentially available, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the Veteran was granted service connection for a lumbar disability in the October 2020 rating decision. Because this grant represents a full grant of the benefits sought, this issue is no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). I. Duty to Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(2). In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires: (1) a determination of the date of the receipt of the claim and (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” Hazan, 10 Vet. App. at 521. Entitlement to an Increased Disability Rating for PTSD The Veteran filed his claim for an increased disability rating of PTSD on February 20, 2015. A review of his medical records demonstrates that an increase in disability was ascertainable on September 4, 2014, the date the Veteran underwent an initial psychiatric consultation. Because the Veteran’s claim was received within one year of September 4, 2014, this date is properly the effective date of the claim for an increased rating. The Veteran is in receipt of 50 percent rating for PTSD effective February 6, 2012 under 38 C.F.R. § 4.130, Diagnostic Code 9411. In November 2020, the AOJ increased the Veteran’s disability rating to 70 percent effective October 6, 2020. Under the General Rating Formula, a 50 percent rating is assigned when a veteran’s psychiatric disability causes 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-term 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. 38 C.F.R. § 4.130. A 70 percent evaluation is warranted when 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. The maximum schedular rating of 100 percent 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; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). Symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Id. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. Id. Turning to the evidence, the Veteran maintains that his psychiatric disability is more severe than has been assessed. Through his representative, the Veteran asserted in December 2017 that his disability impairs his ability to establish and maintain effective relationships and causes considerable issues with judgment and concentration. The Veteran also asserted that he experiences continuous anxiety and depression. A review of the evidence shows that the Veteran underwent an initial psychiatric consultation on September 4, 2014. He reported that he recently had to go on disability due to physical problems and that stressors from this evoked increased PTSD symptoms. He complained of depression with lack of energy, concentration, and motivation. He reported sleep disturbances and indicated that he must take Ambien or he will not sleep at all. The Veteran also reported that he had thoughts at times of whether his family would be better off if he died. The psychiatrist noted that the Veteran presented with depressed mood and downcast affect. Otherwise, his mental status was normal with adequate grooming, pleasant and cooperative attitude, good eye contact, normal speech, goal-oriented thought processes, intact cognition, good insight, and unimpaired judgment. The psychiatrist assessed the Veteran with PTSD and depression, prescribed medication, and referred the Veteran to the VA PTSD program. In December 2014, the Veteran underwent intake for therapy and the VA program for PTSD. During the therapy intake, the Veteran reported that he was not working and had more time to notice his anxiety. He indicated that he was stressed about finances and needing to return to work. He complained of having distressing dreams and nightmares about combat. He also complained of depression with some periods of suicidal thoughts. During the intake for the PTSD program, the Veteran indicated that his primary concerns included sleep difficulties, nightmares, stress management, and depression with periods of suicidal ideation. He also reported symptoms of fatigue and short-term memory issues. The Veteran’s mental status was normal at this time with the exception of a “stressed” mood. Throughout 2015, the Veteran engaged in mental health treatment on a frequent and consistent basis. In most visits, he presented with a normal mental status, including adequate grooming, pleasant and cooperative attitude, good eye contact, normal speech, goal-oriented thought processes, intact cognition, good insight, and unimpaired judgment. However, the Veteran continued to report excessive worry due to health stressors. In this regard, it is noteworthy that the Veteran had surgery on his neck in January 2015, but he continued to experience significant limitations and was told that he required additional surgery. The Veteran was also being treated for leukemia in 2015. The leukemia worsened in April and required adjustments to his chemotherapy regimen. His oncologist noted that the Veteran was experiencing an enormous amount of fatigue in his life with a significantly low white blood cell count. At this time, the Veteran reported having nightmares nightly due to these stressors. The Veteran’s symptoms improved only modestly throughout the remaining period on appeal. In treating visits, he complained increased symptoms surrounding health and family stressors. He consistently reported stress over financial difficulties due to his inability to work and navigating various medical systems for his medical conditions. He also complained of increased PTSD symptoms from the stress of taking care of his mother-in-law and her estate, selling his home, moving to Las Vegas, assisting his wife through treatment for thyroid cancer, and managing interpersonal conflicts with his wife and mother-in-law. With respect to his symptoms, the Veteran consistently complained of poor sleep, decreased focus, and problems concentrating. He also complained of panic attacks and passive suicidal ideation on numerous occasions. In addition to these reports, his mental status frequently consisted of fair insight, fair judgment, dysphoric, depressed, and frustrated moods, circumstantial speech, psychomotor agitation, and fair hygiene. In addition to treatment, the Veteran was also provided numerous examinations to assess the nature and severity of his PTSD. In April 2015, an examiner diagnosed the Veteran with PTSD and documented symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting in stressful circumstances. The examiner expressed her opinion that there has been an increase in symptoms, indicating a progression of the Veteran’s previously rated PTSD. Despite this finding, she assessed the Veteran with occupational and social impairment that was less severe than he had been previously rated. At the time, the Veteran was in receipt of a 50 percent disability rating, which corresponds to occupational and social impairment with reduced reliability and productivity. However, the examiner assessed him with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which corresponds to a 30 percent disability rating. Moreover, symptoms identified by the examiner, such as difficulty in establishing and maintaining effective work and social relationships and difficulty adapting in stressful circumstances, correspond to 50 percent and 70 percent disability ratings, respectively. The Veteran was evaluated by another examiner in March 2016. This examiner also diagnosed the Veteran with PTSD and documented symptoms of anxiety, depressed mood, chronic sleep impairment, and disturbances of motivation and mood. A mental status examination was performed and showed no deficits. From these findings, the examiner concluded that the Veteran has occupational and social impairment due to mild or transient symptoms, which corresponds to a 10 percent disability rating. The examiner expressed her opinion that the Veteran’s current problems are financial and medical more than affected by PTSD, concluding that the Veteran’s sleep issues are due mainly to discomfort from neck surgery. Contrary to this examiner’s opinion, the Veteran reported that he was having passive suicidal thoughts in May 2016 and nightmares every night in September 2016. Additionally, the Veteran consistently presented with fair insight, fair judgment, dysphoric, depressed, and frustrated moods, and circumstantial speech during treating visits in 2016. In October 2020, another VA examiner assessed the Veteran with a higher degree of occupational and social impairment. This examiner diagnosed the Veteran with PTSD and documented symptoms of depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. From these findings, the examiner concluded that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood, which corresponds to a 70 percent disability rating. Based on the above evidence of record, the Board concludes that a 70 percent rating, but no higher, is warranted for the entire period on appeal, and that a higher rating than 70 percent is not warranted at any time during the appeal period. As noted, the April 2015 and March 2016 examiners assessed the Veteran with occupational and social impairment that more closely aligns to a disability rating below 70 percent. However, the March 2016 examiner contradicted her own finding by concluding that the Veteran had an increase in symptoms since he was previously rated. She also concluded that the Veteran has difficulty adapting to stressful situations, a finding that corresponds to a 70 percent rating. Furthermore, treating records and the October 2020 VA examination support a finding that the Veteran is more limited. Symptoms documented in treating records include chronic sleep impairment, difficulty with focus and concentration, nightmares, passive suicidal ideation, panic attacks, fatigue, memory loss, and a lack of motivation. Treating records reveal that these symptoms have intensified during periods when the Veteran was dealing with multiple external stressors, which have included managing his own health issues, assisting his wife through treatment for thyroid cancer, taking care of his mother-in-law and her estate, selling his home, and moving to Las Vegas. These records also demonstrate that the Veteran’s symptoms cause deficiencies in the areas of family relations, judgment, thinking, and mood. Throughout the period on appeal, the Veteran frequently presented in treating visits with of fair insight, fair judgment, dysphoric, depressed, and frustrated moods, circumstantial speech, psychomotor agitation, and fair hygiene. He also frequently complained of interpersonal conflict with his wife and mother-in-law. Accordingly, the Board concludes that the preponderance of evidence supports a finding that the Veteran’s symptoms more nearly approximated the criteria for a 70 percent disability rating.  The Board also finds, however, that a rating greater than 70 percent is not warranted at any time during the period on appeal. Notably, there is no evidence on record that the Veteran experiences 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, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. In this regard, it is noteworthy that the Veteran’s mental status has been consistently normal during treating visits with respect to his orientation, behavior, speech, and cognition. The Veteran’s thought processes have also been consistently linear and goal oriented with the exception of being circumstantial at times. Further, the Veteran’s symptoms do not equate in severity, frequency, and duration to cause total social and occupational impairment. To the contrary, the Veteran is married, and he lives with his wife and mother-in-law. He spends time with his niece and nephews, and he maintains long-distance relationships with his friends in California. Furthermore, the Veteran has been able to manage the estate of his mother-in-law, the sale of his home, and a move to Las Vegas without total decompensation. Because the Veteran does not have total social and occupational impairment, the Board finds that a rating higher than 70 percent is not warranted. In sum, the Board concludes that a 70 percent rating is warranted for the period beginning on September 4, 2014.  However, the preponderance of evidence is against a finding that a rating greater than 70 percent is warranted at any time during the appeal period.  Accordingly, a 70 percent rating, but no higher, is granted for the period beginning on September 4, 2014.  III. Service Connection 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; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a current 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-the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Additionally, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, to include arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease such as arthritis is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he or she served, his or her medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau, 492 F.3d at 1377; and Buchanan, 451 F.3d at 1337 (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Entitlement to Service Connection for a Neck Disability The Veteran maintains that his neck disability manifested during service and that his symptoms have continued since discharge. The Board finds that the elements of entitlement to service connection for a for a neck disability have been met. With respect to current disability, the record reveals that the Veteran has received treatment for chronic, posttraumatic neck pain. In 1992, magnetic resonance imaging (MRI) of the cervical spine revealed the presence of a midline protrusion of the nucleus pulposus with mild disc degeneration at the C5-C6 spinal levels. The Veteran’s symptoms were aggravated by a motor vehicle accident in 2003 and his condition continued to progress. An MRI documented advanced C5-C6 and C6-C7 degenerative changes in 2011 and the Veteran had spinal fusion surgery in 2015. In October 2020, a VA examiner confirmed that the Veteran has a current diagnosis of cervical degenerative disc disease, intervertebral disc syndrome (IVDS), spinal fusion, and bilateral upper extremity radiculopathy. Accordingly, the first element of service connection has been satisfied. With regard to in-service incurrence, the Veteran maintains that his neck condition initially began in the mid-1960s during active duty service. He reported that he sustained numerous injuries of the neck while working as a combat medic, which required him to run around the combat area, carry medical supplies, and pull wounded soldiers to safety. He also told a VA examiner in October 2020 that he experienced numerous falls and was involved in a mine explosion while riding in a tank. The Board notes that the Veteran is competent to report symptoms and observable events within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470-471 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the Board finds no reason to doubt the credibility of these statements. Military personnel records confirm that the Veteran worked as a medical specialist while serving in Korea under hostile fire. Accordingly, the Board finds that the Veteran’s competent and credible lay statements sufficiently establish the in-service incurrence element of this claim. The remaining question is whether there is a nexus between the Veteran’s in-service incurrence and his current neck disability. The record contains a negative opinion addressing a nexus. An October 2020 VA examiner concluded that the Veteran’s neck disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Veteran told the examiner that his neck issues began during service in the mid-1960s, but the examiner discounted the Veteran’s statements because there was no record of treatment or diagnosis for neck issues during service or at separation. The examiner reasoned that the evidence failed to demonstrate a pattern of chronicity, citing to medical records that documented treatment for cervical degenerative disc disease, degenerative arthritis, and cervical IVDS between 2014 to 2016. However, the Veteran made the same statements pertaining to the onset of a back disability and the October 2020 VA examiner provided a positive nexus for this condition. The examiner noted that service treatment records (STRs) documented care for back pain and she reasoned that the Veteran’s statements of continual symptoms since service are consistent with a history of overuse injury that can lead to the development of arthritis, degenerative disc disease, and spinal stenosis of the lumber spine with progression to IVDS. As with the Veteran’s cervical disabilities, these lumbar disabilities were not diagnosed or treated until more than 30 years after service. From this rationale, it is clear that the examiner’s negative nexus opinion discounts the Veteran’s statements solely due to the absence of diagnosis or treatment for neck pain during service. However, the Veteran is competent to report the onset and continuity of his neck symptoms and the Board finds no reason to doubt the credibility of these statements. 38 C.F.R. § 3.303(a); see also Jandreau, 492 F.3d at 1377. The Veteran’s reports have been consistent throughout his appeal and there is nothing on record to contradict them. Accordingly, the Board finds that the VA opinion is inadequate and has no probative value with regard to a nexus for is neck condition. See Buchanan, 451 F.3d at 1337. Given that there is no adequate negative opinion, the competent and credible statements made by the Veteran are highly probative in establishing a nexus. See 38 C.F.R. § 3.303(a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). Moreover, the VA examiner’s conclusion that arthritis, degenerative disc disease, spinal stenosis and IVDS can develop many years after service from an overuse injury during service is also highly probative evidence with respect to establishing a nexus. Accordingly, the Board finds that the most probative evidence establishes a nexus between service and the Veteran’s current neck disability. In sum, the weight of the evidence supports finding that the Veteran’s neck disability was incurred during his active service, and service connection is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 3.303(a), (d). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Beech, 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.