Citation Nr: 21029620 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-37 881 DATE: May 14, 2021 ORDER Entitlement to a 50 percent rating for post-traumatic stress disorder (PTSD) disorder (with alcohol and cannabis use disorders in remission) from January 29, 2013 to April 8, 2017, is granted. Entitlement to a rating in excess of 70 percent disabling for PTSD on June 1, 2017 and thereafter is denied. Entitlement to a compensable rating for left lower leg scar is denied. Entitlement to a compensable rating for right lower leg scar is denied. FINDINGS OF FACT 1. From January 29, 2013, to April 8, 2017, the Veteran's PTSD manifested with reduced reliability and productivity. 2. The Veteran has already been assigned a temporary total rating for PTSD from April 9, 2017, to May 31, 2017. 3. From June 1, 2017, the Veteran's PTSD did not manifest total occupational and social impairment. 4. For the entire appeal period, the Veteran's left lower leg and right lower scars did not manifest an affected area or areas of 144 square inches (929 sq. cm.) or greater. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 50 percent rating for PTSD from January 29, 2013, to April 8, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a rating in excess of 70 percent disabling for PTSD on June 1, 2017, and thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a compensable rating for left lower leg scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7802. 4. The criteria for entitlement to a compensable rating for right lower leg scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 and July 2020 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In December 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board issued a remand in April 2019 instructing the RO to obtain VA examinations to determine the severity of the Veteran's PTSD and bilateral scars. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained a July 2020 VA examination for each claim on appeal. The Board finds the RO substantially complied with the April 2019 remand directives. The Board has reviewed all the evidence in the Veteran's claims file, with an emphasis on medical and lay evidence for the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 1. Entitlement to a rating higher than 30 percent for PTSD from January 29, 2013 to April 8, 2017. 2. Entitlement to a rating in excess of 70 percent disabling for PTSD from June 1, 2017. Prior to April 9, 2017, the Veteran was rated at 30 percent disabling for PTSD effective January 29, 2013, under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. The Veteran's disability rating was increased to 70 percent disabling effective June 1, 2017 and continued thereafter. The Veteran contends that he is entitled to a higher rating because the severity of his symptoms of PTSD increased. During the December 2018 Board hearing, the Veteran stated that he wasn't treated for several years after service, because he tried to deal with his PTSD on his own. However, he was suggested to seek help and was treated at several different facilities. He testified that the record would not reflect all the symptoms he has experienced with his PTSD, because he was too embarrassed to report them. He stated that he has problems with anger and believed one of his doctors was trying to set him up. The Veteran also expressed that he might be suicidal or homicidal because he was so upset. He chose to not own guns because of his level of anger. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary disorders of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Since the Veteran timely appealed the rating initially assigned for his service-connected radiculopathy disabilities, the Board must consider entitlement to "staged" ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The schedule for rating psychiatric disabilities is under 38 C.F.R. § 4.130, to include PTSD and other acquired psychiatric disorder. A 30 percent rating is warranted for 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), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent 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; memory loss for names of close relatives, own occupation, or own name. Id. January 29, 2013 to June 1, 2017 The Board finds that the occupational and social impairment of the Veteran's PTSD did manifested reduced reliability and productivity prior to April 9, 2017. During a March 2013 Preventive Health Screening, the Veteran complained of PTSD with anger issues. A PTSD screening was performed the Veteran reported having nightmares, avoided thought or situations that reminded him of his trauma, and was constantly on guard. The Veteran reported that he experienced the following quite a bit: psychical reaction when reminded of stressful experience, avoided activities or situations when reminded of stressful experience, feeling distant or cut off from others, feeling emotionally numb or unable to love others, feeling irritable or having angry outbursts, difficulty concentrating, and feeling jumpy or easily startled. A suicide risk screening was performed as well. The Veteran reported that he had thoughts of taking his life. He began to have these thoughts to years after he lost his job. He did not make an attempt or have a plan. The Veteran's PTSD was evaluated during a July 2013 VA examination. The examination showed the Veteran had a diagnosis of PTSD and polysubstance abuse in remission due to PTSD. The Veteran reported that he was treated at the Muskegon VA CBOC twice since April 2013. He received two DUI's 35 years prior and pain fines, but he did not serve prison time. He also reported no heavy substance abuse, smoking cessation, feelings of stress and apathy. He stated that he thought of shooting himself after he lost his job. Since then, he had gotten rid of his guns. The Veteran's occupation and social impairment was best summarized as mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The examiner noted the Veteran's experienced symptoms of anxiety, disturbances of motivation and mood, and fearful of hostile military activity. In April 2014, the Veteran completed a depression screening at the Muskegon VAMC. He reported not feeling little interest or pleasure in doing things or feeling down, depressed, or hopeless. He also reported having alcohol on monthly basis, but drunk one or two drinks per day. See also April 2015 Depression Screening. The Veteran completed an intake assessment in December 2015 at the Grand Rapids Vets Center. The Veteran reported symptoms irritability, anger, repeated thoughts of losses in combat, repeated recalls memorial in the jungle with no time to grieve, and reminders of losing his best friend in combat. Mental status examination revealed the Veteran to be neat, anxious, appropriate speech, impaired memory function, flat affect, tense motor activity, fair judgement, and average intelligence. There was evidence of disorganized thinking, sleep disturbance, and low energy level. Assessment reported recurrent mild depression, anxiety with significant irritability and anger, depressed mood with feelings of isolation. The Veteran denied suicidal ideation or intent or plan. During an April 2016 Preventive Health Screening, the Veteran completed an alcohol and depression screening. The Veteran reported that he drunk alcohol two to four times a month, experienced little interest for several days, and feeling down for several days. The Veteran was hospitalized for his condition on April 9, 2017 and remained in the hospital until May 26, 2017. The Board finds that the Veteran's occupational and social impairment manifested reduced reliability and productivity prior to April 9, 2017. The evidence showed the Veteran to experience memory impairment, anger, anxiety, impaired abstract thinking, and disturbance of motivation and mood. Therefore, a 50 percent rating is warranted effective January 29, 2013 to April 8, 2017. A higher rating is not warranted because the occupational and social impairment did not manifest with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. June 1, 2017 and thereafter The Veteran was hospitalized for his condition on April 9, 2017 and remained in the hospital until May 26, 2017. In a July 2017 rating decision, the Veteran was assigned a temporary evaluation of 100 percent effective April 9, 2017, to May 31, 2017 pursuant to 38 C.F.R. § 4.29. This issue and time period is not currently on appeal. However, the Veteran's disability rating resumed June 1, 2017, at 30 percent under the 38 C.F.R. § 4.130, DC 9411. The Veteran testified that his condition has worsened at the December 2018 Board hearing. The Board remanded the claim for further evaluation. A July 2020 rating decision assigned the Veteran a 70 percent rating effective June 1, 2017. Therefore, this is the period and decision on appeal. The Board finds that the Veteran's occupational and social impairment did not manifest total occupational and social impairment from June 1, 2017 and thereafter. The Veteran submitted a private disability benefits questionnaire dated June 2017. The examiner stated that the Veteran had more than one mental disorder, but it was not possible to differentiate which symptoms were attributable to each diagnosis, because the depression symptoms bled into the PTSD. The examiner characterized the Veteran's occupational and social impairment as reduced reliability and productivity which is analogous to a 50 percent rating. In an August 2017 progress note, the Veteran reported that he had one drink of alcohol weekly. Also, in August 2017, the Veteran completed a psychological assessment with Dr. Ham. The Veteran reported recollection of combat trauma and improvement of his anger. He also reported drinking two to four times per month and not experiencing little interest or feeling down. Dr. Ham noted that the Veteran had relatively recently began to directly address traumatic incidents from his year of service in Vietnam, having completed 7-week residential program at Captain Lovell in north Chicago. He alluded to another incident in combat that he had not discussed with anyone and was strongly considering doing so in near future as the amount of intrusive thoughts about the event were becoming more troubling. The Veteran participated in group counseling in January 2018. He reported ongoing "backsliding" regarding his previous progress on emotional regulation, especially anger-related behavior. He reiterated that recent residential trauma treatment at Captain Lovell was very helpful but gains now diminishing. He also provided more description of several traumatic incidents from Vietnam, including confrontation with and officer who shot a prisoner and the burying of hundreds of dead or mortally wounded enemy with his bulldozer or other equipment. He somewhat tearfully reviewed action that caused great guilt. Assessment showed that the Veteran exhibited good grooming and hygiene, was mildly anxious, preoccupied, then showed moderate distress as trauma incidents were reviewed, eventually "relieved". Affect was congruent with mood, speech was normal in tone, rate and volume, judgment was deemed fair to good, memory was grossly intact, and thought process is logical and goal oriented. There were no signs or symptoms of hallucinations or delusions. The Veteran denied any indication of suicidal or homicidal thoughts and is judged to be low risk for harming self or others at this time. See also September 2019 Group Counseling (active during discussion, regular contact with other veterans with PTSD, denied self-harm). The Veteran underwent another VA examination July 2020 to assess the severity of his symptoms. The examiner noted the Veteran to have PTSD, alcohol use disorder in sustained remission, and cannabis use disorder in sustained remission. The examiner noted that all of the Veteran's symptoms were attributable to PTSD. The examiner characterized the Veteran's occupational and social impairment to be reduced reliability and productivity which is analogous to a 50 percent rating. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, impaired judgment, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideation, and obsessional rituals. After careful review of the record, the Board finds that a rating in excess of 70 percent for service-connected PTSD is not warranted at any time during the appeal period. The evidence of record fails to show that the Veteran's symptoms more nearly approximated total occupational and social impairment at any time during the appeal period. In particular, the Veteran's treatment providers and examiner have documented symptoms such as depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened effect, disturbances of mood and motivation, and difficulty in establishing and maintaining social relationships. Importantly, no VA examiner or treatment provider has found the Veteran to experience total occupational and social impairment caused by his PTSD. There is no evidence of gross impairment in thought processes or communication, grossly inappropriate behavior, inability to perform activities of daily living, and disorientation to time or place. The provided opinions are shown to have been based upon a thorough examination and review of the evidence of record, and, as such, the Board considers them probative and persuasive. Although his symptoms caused difficulty with both occupational and social functioning, he was not totally socially and occupationally impaired, and a 100 percent rating is not warranted at any time during the appeal period. 38 C.F.R. § 4.130, DC 9411. In reaching this conclusion, the Board notes that the Veteran is competent to report symptoms of PTSD, but not to identify a specific level of disability. The medical findings in this case directly address the criteria under which this disability is evaluated, and the objective medical evidence is accorded greater weight than the subjective complaints of increased symptomatology. Therefore, the preponderance of the evidence is against the claim for a higher rating. 3. Entitlement to a compensable rating for left lower leg scar is denied. 4. Entitlement to a compensable rating for right lower leg scar is denied The Board addresses the rating claims together as they stem from the same factual background and are addressed under the same legal basis. The Veteran is service connected for left and right lower leg scar due to shrapnel injury effective January 29, 2013. The Veteran was first rated under 38 C.F.R. § 4.118, DC 7805 with a single service-connected disability that evaluated both legs together. After the Board remanded the claim in April 2019, the Veteran was assigned two separate noncompensable ratings under DC 7802 effective December 23, 2019. See July 2020 rating decision. However, the Board will consider both DC for the entire period on appeal. The Veteran contends that he is entitled to a compensable rating for the scars on his left and right lower leg. During the December 2018 Board hearing, he testified that he didn't know if the scar was the cause of his pain, but he had experienced pain in both of his legs for almost 50 years. He also stated that he woke during the night with pain in his legs. He attempts to ride a bike but his legs stiffen up. Superficial and nonlinear scars not on the head, face, or neck are evaluated under DC 7802. Under this DC, a compensable rating is not available unless such scars cover an area of at least 144 square inches (929 square centimeters). Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802. Under DC 7805, any other scars, including linear scars, are to be rated based on any disabling effects and the appropriate diagnostic code for such effects. 38 C.F.R. § 4.118, DC 7805. As the Veteran's scar is not on the face, head or neck, and is linear, DCs 7800-7802 do not apply, and will not be considered for this disability. 38 C.F.R. § 4.118, DCs 7800-7802. Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. Higher ratings of 20 and 30 percent are warranted if there are three or four, or five or more, unstable or painful scars, respectively. If one or more scars are both unstable and painful, a 10 percent rating is added to the rating that is based on the total number of unstable or painful scars. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7804, Note 1. The Board notes that the criteria for rating skin disorders was again changed effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018). As affecting scars under DCs 7801, 7802 and 7805, the amended criteria added notes to identify the six zones of the body for determining the potential applicability of separate ratings for multiple scars affecting different areas, or for a scar involving a large area. As each extremity is considered a "zone" under the amended criteria, each scar is properly evaluated separately under the amended criteria. Post-service treatment records do not show ongoing complaints of pain with scars throughout the record. The Veteran's scars were evaluated during a July 2013 VA examination. The examination showed a diagnosis of shrapnel injury to the lower legs and a residual scar bilaterally. The Veteran reported that he experienced flareups and the pain reached level six once in a while. He would also experience pain in the morning that would decrease throughout the day. The examiner noted the right leg to have a hypopigment scar that measured 0.5 cm by 0.5 cm and the left leg to have a hypopigment scar that measured 2 cm by 2 cm. Neither of the scars were painful. The Veteran was evaluated gain in January 2020. The Veteran informed the physician that he had a scar on his left leg calf and a scar on his right mid-shaft shin. Neither scar was painful or tender. Physical examination revealed that neither scar was painful, unstable, or due to burns. The scar on the right leg measured 1.5 cm by 0.5 cm and the scar on the left leg measured 2 cm by 2 cm. The approximate combined total area affected by the right scar was 0.3 square centimeters and the approximate combined total area affect by the left scar was 4 square centimeters. Neither scar showed underlying soft tissue damage. The examiner also noted there was no disabling effects or limitation of occupational tasks because of the scars. In this case, DC 7800 does not apply because neither of the scars are of the head, face or neck. DC 7801 does not apply because neither scar was associated with underlying soft tissue damage. DC 7802 is applicable because there is no soft tissue damage, but a compensable rating is not warranted because the affected area was not at least 929 square centimeters. DC 7804 is not applicable because neither scar was painful or unstable. DC 7805 is not applicable because the evidence did not show any disabling effects. A minimum compensable rating is not warranted unde the general rating formular for skin because the evidence does not show characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. DC 7806 7833 are designated for specific skin diagnoses which the evidence does not show the Veteran has. Accordingly, DC 7802 is the applicable DC for the entire appeal period, but a minimum compensable rating is not warranted at this time. The Board acknowledges the Veteran's testimony that he experienced pain in his legs for almost 50 years and that his legs stiffen when attempting exercise, but the evidence of record does not show that the symptoms are associated with the service connected left leg and right leg scars. As a preponderance of the evidence is against the award of an increased evaluation, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.