Citation Nr: 21028811 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-47 623 DATE: May 12, 2021 ORDER Entitlement to a 70 percent disability rating, and no higher, for posttraumatic stress disorder (PTSD), for the period on appeal prior to January14, 2020, is granted. Entitlement to a disability rating in excess of 70 percent for PTSD for the period on appeal beginning January 14, 2020 is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD), is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, throughout the entire appeal, the Veteran's PTSD manifested by symptoms consistent with occupational and social impairment, with deficiencies in most areas; total social impairment has not been shown. 2. The competent evidence of record shows that the Veteran's GERD is as least as likely as not related to active duty service. CONCLUSIONS OF LAW 1. For the period prior to January 14, 2020, the criteria for an initial disability rating of 70 percent, for PTSD, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9411 (2020). 2. For the period on appeal beginning January 14, 2020, the criteria for a disability rating in excess of 70 percent, for PTSD, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9411 (2020). 3. The criteria for service connection for GERD have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2007 to November 2010. These matters come before the Board of Veterans Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. The Veteran timely filed a notice of disagreement (NOD) in August 2014, and in July 2016, the RO issued a statement of the case (SOC). In September 2016, the Veteran perfected his substantive appeal and requested a hearing. In October 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the electronic file. Most recently, in a December 2019 decision, the Board remanded these issues for additional adjudication, which has been substantially completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (Court) held, in substance, that every claim for an increased disability rating includes a claim for a TDIU where the Veteran claims that her service-connected disability prevents him from working. In this case, the record raises a TDIU issue, as the record indicates the Veteran could not continue his employment due to his service-connected PTSD. See January 2020 VA Examination. Accordingly, the Board has characterized the issues on appeal so as to include a claim for entitlement to a TDIU. 1. Entitlement to a 70 percent disability rating, and no higher, for posttraumatic stress disorder (PTSD), for the period on appeal prior to January14, 2020, is granted. 2. Entitlement to a disability rating in excess of 70 percent for PTSD for the period on appeal beginning January 14, 2020 is denied. The Veteran is seeking a higher disability rating for his service-connected PTSD. Specifically, he contends that his disability is more severe than reflected by his currently assigned disability ratings and requests a 70 percent disability rating. See August 2014 NOD. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that the Veteran's PTSD is currently evaluated Diagnostic Code 9411; a code rated according to the General Rating Formula for Mental Disorders. Pursuant to the rating formula, a 30 percent rating for PTSD is warranted when there is 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), and chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events). A 50 percent disability rating is warranted for 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted for 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. A 100 percent disability rating is warranted 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; and memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Turning to the evidence of record, November 2011 buddy statements reveal that following service, the Veteran was quiet, brooding, and insecure. He was also anxious in crowds, ill-tempered, and tired. He would have anxiety attacks and panic attacks that would often leave him confined to his room for several days. The Veteran also reported chest pains, nervousness, nausea, fear of dying, and trembling or shaking. He dropped out of school due to having a hard time focusing and panic attacks. A Veteran's buddy also asserted that he had created a nondemanding employment position for the Veteran, but that the Veteran was unable to do the job due to his panic attacks. In March 2012, the Veteran was afforded a VA examination. The Veteran was found to have occupational and social impairment with occasional decrease in work efficiency. His symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, and difficulty establishing and maintaining work and social relationships and in adapting to stressful circumstances. A March 2014 VA treatment record reveals that the Veteran has struggled since the military and had difficulties regarding employment. He tried to work as a medical assistant, but this triggered reminders and panic symptoms which made it too difficult to continue. He did some upholstery work for a bit but was largely unemployed for some time until finding a job in a clinic which he was pleased about thus far. The Veteran was living alone, he felt a bit tired and a little depressed, has some panic symptoms 1-3 times a week. He also had some memory and focus concerns. In a May 2014 VA examination, the Veteran was found to have occupational and social impairment with occasional mild or transient symptoms. The Veteran reported working and reported enjoying his work. The Veteran stated that he was going out socially and capable of completing all instrumental activities of daily living. The Veteran's symptoms included depressed mood anxiety, panic attacks more than once a week and chronic sleep impairment. In his August 2014 NOD, the Veteran reported panic attacks every day, severe lack of motivation interfering with work functions and reliability, and social impairment in that he is distant with friends and family. March 2016 and June 2016 VA treatment records show that the Veteran's panic attacks were more manageable, but that irritability was still an issue. He also still had difficulty with focus and concentration as well as energy. His judgement was adequate, and he had some insight. In his September 2016 VA Form 9 the Veteran reported symptoms including depression and panic to the point debilitation, suicidal thinking and ideation, impulsive anger, and being unable to handle stress and relationships. VA treatment records from January 2011 to January 2018 consistently fail to note suicidal or homicidal intent. June 2018 VA treatment records show that the Veteran was admitted due to suicidal intent. In his October 2019 Board hearing, the Veteran reported that in 2011 his symptoms started getting really bad. He started to have panic attacks daily, he was bedridden and had suicidal ideation. He attempted suicide in 2011 or 2012. His depression got worse until 2018 when he self-admitted for suicidal ideation. He asserted that he was unable to keep his employments after service due to his panic attacks. He asserts that he did not tell VA examiners about his suicide attempt due to his ego. In January 2020, the Veteran was afforded a VA examination and found to have occupational and social impairment with deficiencies in most areas. He reported that he worked as a medical support staff and front desk receptionist for 4 years and quit in August 2018. He reported that he spent a lot of time on leave during that time. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, mild memory loss, disturbances of motivation and mood, difficulty in establishing relationships and adapting to stressful circumstances and impaired impulse control, neglect of personal appearance and intermittent inability to perform activities of daily life. In September 2020, the Veteran was afforded another VA examination. The Veteran reported not working since 2018 but starting online classes in the Fall 2020. He asserted that his brain does not function like it used to. He is struggling with memory and focus. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, mild memory loss, disturbances of motivation and mood, difficulty in establishing relationships and adapting to stressful circumstances and impaired impulse control, difficulty understanding complex commands, neglect of personal appearance and intermittent inability to perform activities of daily life. Following a review of the evidence of record and the applicable legal criteria, the Board finds that an increased disability rating of 70 percent for PTSD for the period on appeal prior to January 14, 2020 is warranted. Giving the Veteran the benefit of the doubt, the Board finds that the record supports occupational and social impairment, with deficiencies in most areas, for the pendency of the appeal. The Veteran experienced suicidal ideation, difficulty in adapting to stressful circumstances, depressed mood, chronic sleep impairment, panic attacks more than once a week, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances. The record supports that the Veteran's symptoms have been consistent throughout the appeals period and that he suffered disruptions to her social life, work life, and mood due to his PTSD. Thus, for the period on appeal prior to January 14, 2020, serious psychiatric symptoms were recorded as those contemplated by the 70 percent rating. As such, entitlement to an initial disability rating of 70 percent, but no higher, for PTSD, for the period on appeal prior to January 14, 2020, is warranted. The Board next finds that, for the entire rating period on appeal, the Veteran's PTSD does not more nearly approximate a 100 percent disability evaluation under Diagnostic Code 9411. The Board finds that weight of the lay and medical evidence shows that his PTSD symptoms do not demonstrate total social impairment. Specifically, the record does not show that the Veteran experienced 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. Moreover, at no time during the appeal period have any examiners indicated that the Veteran's PTSD resulted in total social impairment. Moreover, the Veteran has limited his increased rating claim for PTSD to a 70 percent rating, as evidenced by his sworn statements. See August 2014 NOD. Based on the foregoing, the Board finds that a rating of 70 percent, and no higher, is warranted for the period on appeal prior to January 14, 2020. For the period beginning January 14, 2020, the preponderance of the evidence is against the claim and a disability rating in excess of 70 percent is not warranted. 3. Entitlement to service connection for GERD is granted. The Veteran is seeking service connection for GERD. Specifically, he contends that his GERD was first diagnosed during service. He also contends that during service he was exposed to numerous toxins. See September 2016 VA Form 9. A veteran is entitled to VA disability compensation if there is a current disability resulting from a personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in a disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Review of the medical evidence of record reveals that the Veteran is currently diagnosed with GERD. See September 2018 VA examination. As the Veteran clearly suffers from a current disability, the first element of service connection has been met. Likewise, the second element of service connection is met. Specifically, review of the record reveals that in October 2008, the Veteran was treated for a gag reflex. See October 2008 Service Treatment Record (STR). The Veteran also reported in his July 2011 claim that he served as a hospital corpsman and that because of his job as a hospital corpsman, none of his GERD was documented. The GERD was the result of taking anti-inflammatories and motrin for his back and knees. He needed to take OTCs for this problem and can no longer enjoy spicy food. In support of the Veteran's contentions, the record shows that his military occupational specialty (MOS) was as a field medical technician. Therefore, the Veteran's military occupation is in accordance with his statements and testimony of his in-service disability. Moreover, the Veteran's lay evidence is competent, consistent, and credible given that is it also supported by military personnel records regarding his duties during service. See Cohen v. Brown, 10 Vet. App. 128 (1997); see also Doran v. Brown, 6 Vet. App. 283 (1994). As such, the Board finds that the second element of service connection has been met. The salient question to be answered is thus whether the Veteran's currently diagnosed disability is related to an in-service injury or to a service-connected disability. Turning to the evidence of record, in a September 2018 VA examination, the Veteran was diagnosed with GERD with an onset year of 2008 (during military service). The examiner noted that the Veteran developed problems in 2008 and he admits to retrosternal reflux and burning. In May 2020, the RO obtained a VA opinion. The examiner opined that the Veteran's GERD is less likely than not due to the Veteran's service connected back disability or PTSD. He explained that the Veteran reported that he doesn't currently take and hasn't in the past taken any medication for spina bifida occulta and in addition, spina bifida occulta is not known to cause GERD. With regard to the PTSD, the Veteran's GERD symptoms started in 2010, which is prior to the time that the PTSD was diagnosed, and medications were started. The Board finds the September 2018 VA examiner's report to be competent, credible, and highly probative. He examined the Veteran, accounted for his lay statements and provided finding based on accurate review of the record. Contrastingly, the Board finds that the May 2020 VA opinion is inadequate and of little probative value. Specifically, the examiner does not provide a direct service connection opinion and his secondary service connection opinions fail to address the Veteran's lay statements and October 2008 STR noting "gag reflex." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Based on the foregoing, the Board finds that the evidence of record is in relative equipoise as to whether the Veteran's GERD began during and has continued since service. As such, the Board resolves reasonable doubt in favor of the Veteran and finds that the Veteran's GERD was caused by active service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Therefore, the three elements of service connection have been met and entitlement to service connection for GERD is warranted. REASONS FOR REMAND 1. Entitlement to a TDIU due to service-connected disabilities is remanded. As noted above, the Board finds that the evidence of record reasonably raises the issue of a TDIU given the Veteran's claim that he is unable to work due to her service-connected PTSD. See January 2020 VA Examination. As such, the claim for entitlement to a TDIU must be remanded to the RO for consideration of the issue in the first instance. The matters are REMANDED for the following action: 1. Notify the Veteran as to how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he and his representative supply the requisite information. (Continued on the next page) 2. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim for a TDIU. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.