Citation Nr: 21026089 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 18-02 222 DATE: April 29, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to a 70 percent rating, but no higher, is granted for the service-connected other specified trauma and stressor-related disorder (the psychiatric condition). FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's PTSD is related to his military service. 2. The evidence is at least in equipoise as to whether the Veteran's psychiatric condition has manifested by occupational and social impairment with deficiencies in most areas, due to such symptoms such as suicidal ideation, impaired impulse control, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125. 2. The criteria for a 70 percent disability rating, but no higher, for the psychiatric condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 2007 to March 2008 and from March 2010 to April 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office that denied a rating in excess of 10 percent for the Veteran’s service-connected insomnia and continued a denial of service connection for PTSD. The Veteran and his spouse testified at a hearing before the undersigned in May 2020. Entitlement to service connection for PTSD. The Veteran has a service-connected psychiatric condition, but is seeking to establish service connection for PTSD as the correct disability. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.03. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Entitlement to service connection for PTSD requires medical evidence diagnosing the condition, medical evidence establishing a link between the in-service stressor and current symptoms, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. Id. 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. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran’s personnel records show he served in a designated imminent danger pay area in Afghanistan from July 2010 to February 2011. He reported undergoing regular rocket attacks and witnessing the aftermath of a deadly improvised explosive device. An October 2014 rating decision granted service connection for other specified trauma with insomnia but denied service connection for PTSD because a VA examiner opined a PTSD diagnosis was not warranted after an August 2014 examination. The November 2016 rating decision continued the denial based on the lack of a confirmed PTSD diagnosis The August 2014 examiner found the criteria for a PTSD diagnosis were not met but that the Veteran “does meet several of the PTSD criteria and has clearly been affected by the combat-related stressors.” Notably, in an addendum opinion, the examiner opined the anxiety diagnosis should be modified to other specified trauma related disorder as his symptoms “are most likely related to his fear of hostile military or terrorist activity and are subthreshold PTSD symptoms.” A January 2018 private examination report shows that a licensed psychologist diagnosed PTSD resulting from traumatic experiences the Veteran suffered in Afghanistan while on active duty. The Board finds the examiner’s opinion highly probative because he reviewed the record, examined the Veteran, and described how the Veteran’s symptoms met the criteria for a PTSD diagnosis in detail. The examiner’s diagnosis is also not directly contradicted by any other medical evidence of record, as the August 2014 VA examiner noted the Veteran had subthreshold PTSD symptoms and simply did not meet the criteria for a diagnosis at that time. Therefore, given the competent and credible medical evidence showing that the Veteran has PTSD due to his service in Afghanistan, the Board finds that the criteria for service connection for PTSD have been met. It is important for the Veteran to understand that this finding will not necessarily result in additional compensation because the already service-connected psychiatric condition compensates him for his psychiatric symptoms, and the AOJ did not find there were symptoms associated with a non-service-connected disability that could not be considered for rating purposes. Entitlement to an initial disability rating in excess of 10 percent for the service-connected other specified trauma and stressor-related disorder. As to entitlement to a rating in excess of 10 percent for the Veteran’s psychiatric condition, the Board finds that the evidence is at least in equipoise as to whether the disability has manifested by occupational and social impairment with deficiencies in most areas, due to such symptoms such as suicidal ideation, impaired impulse control, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. In this regard, the Veteran’s spouse reported in a July 2014 statement that the Veteran seemed to be unable to control his anger. She noted he seemed to become overwhelmed and had a hard time calming down. The August 2014 VA examiner noted the Veteran reported significant anxiety symptoms that affected his overall sense of well-being, his level of trust and comfort with other people, and his sense of safety. She noted he was chronically hypervigilant and jumpy. A November 2015 VA treatment record notes the Veteran sought counseling for PTSD. He said he felt lost in life and wanted to just run away. December 2015, January 2016, and February 2016 VA treatment records note the Veteran acknowledged having passive suicidal ideation. The January 2018 private examiner summarized the medical evidence and found the Veteran’s psychiatric condition caused moderate to significant impairment in most areas, including work, school, family relations, judgment, and mood. At the May 2020 Board hearing, the Veteran reported he did not have relationships outside of his family. He worked as a custodian at night so he could work alone. He also reported becoming very irritable with his daughter, and scaring her by yelling, hitting the wall, and throwing objects. The Veteran’s spouse reported he had experienced irrational fears and at times forced his family to hide whenever someone came to the door. The Veteran reported he still hides any time someone comes to his door. He is also very jumpy if he didn’t know someone was near him. His spouse noted he used to frequently think about suicide. The Veteran reported he did not have current thoughts of suicide, but still experienced “dark thoughts.” Based on a review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s psychiatric disorder was manifested by occupational and social impairment with deficiencies in most areas, due to such symptoms such as suicidal ideation, impaired impulse control, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. While the August 2014 VA examiner opined that the level of occupational and social impairment caused by all of the Veteran’s psychiatric condition was best summarized by the level of impairment associated with a noncompensable rating, she also noted the Veteran reported significant anxiety symptoms and that he was chronically hypervigilant and jumpy. She also indicated he experienced irritable behavior and angry outbursts typically expressed as verbal or physical aggression toward people or objects, which is a symptom associated with a 70 percent rating. Accordingly, the Board finds the service-connected psychiatric condition meets the criteria for a 70 percent rating. However, the Board finds the evidence shows that the criteria for a 100 percent schedular rating are not met at any time during the dependency of the appeal. The Board acknowledges that the Veteran thought of suicide in the past and reported having regular difficulty controlling his anger, but finds the severity, frequency, and duration of these symptoms did not rise to a persistent danger of hurting self or others, a symptom contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The evidence, including the January 2018 private examination report and VA treatment records, shows he regularly denied thoughts, intent, or a plan of harming himself or others during the period on appeal. There is also no indication the Veteran’s symptoms include, for example, gross impairment in thought processes or communication; persistent delusions or hallucinations; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The Veteran did report hearing voices during the January 2018 private examination, but the examiner noted he did not believe the hallucinations were associated with the psychiatric condition and that they could be caused by marijuana use. As explained above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. (Continued on the next page)   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 schedular rating. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds entitlement to a 70 percent disability rating, but no higher, is warranted for the service-connected psychiatric condition. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William A. Skowronski, 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.