Citation Nr: 21030436 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-12 266 DATE: May 18, 2021 ORDER For the entire period on appeal, a rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for migraine headaches is remanded. FINDING OF FACT For the entire period on appeal, the Veteran's PTSD symptoms most nearly approximated occupational and social impairment with deficiencies in most areas, but did not more nearly approximate total social and occupational impairment. CONCLUSION OF LAW For the entire period on appeal, the criteria for a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2003 to May 2003; July 2004 to April 2005; and March 2008 to April 2009. He also served in the Kentucky Army National Guard from July 2002 to September 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board granted an initial rating of 10 percent for migraine headaches and denied a rating in excess of 30 percent for PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans' Claims (Court). In October 2019, the Court granted a Joint Motion for Partial Remand (JMPR) by counsel for VA and the Veteran, vacated the February 2019 Board decision as to the PTSD and migraine headaches claims, and remanded the matter to Board for action consistent with the JMPR. In March 2020, the Board remanded this matter for additional development. In an April 2019 rating decision, during the pendency of the present appeal, the RO increased the rating for migraine headaches from 0 percent to 10 percent, effective April 7, 2014. Because less than the maximum available benefit for a schedular rating was awarded, the claim remains before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). In a September 2020 rating decision, during the pendency of the present appeal, the RO increased the rating for PTSD from 30 percent to 50 percent, effective September 10, 2020. Because less than the maximum available benefit for a schedular rating was awarded and because the increased rating was not awarded for the entirety of the claims period, the claim remains before the Board. Id. The Board also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here however, the Veteran reported during his August 2020 VA examination that he was gainfully employed and does not assert the inability to maintain his current job due to his service-connected disabilities. The Board, therefore, finds that Rice is inapplicable, and a TDIU request has not been inferred. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where a veteran is diagnosed with multiple disabilities of the same body part/system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. 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. 1. Entitlement to increased ratings for PTSD. The Veteran is in receipt of a 30 percent disability rating for PTSD from April 7, 2014 to September 9, 2020, and a 50 percent rating thereafter, under 38 C.F.R. § 4.130, DC 9411. He contends that higher ratings are warranted for the entire period on appeal. The Veteran's PTSD is rated under the general rating formula for rating mental disorders pursuant to 38 C.F.R. § 4.130, DC 9411. Under such formula, 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 de-pressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). 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; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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 total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Here, the RO certified the Veteran's appeal to the Board after August 4, 2014; therefore, the PTSD claim is governed by DSM 5 and the GAF scores are not relevant for consideration. See Golden v. Shulkin, 29 Vet. App. 221, 225-26 (2018) (holding that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where DSM-5 applies). When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. As an initial matter, the Board notes that the Veteran is in receipt of a separate 10 percent rating for a traumatic brain injury (TBI) under DC 8045. This rating was based on complaints of mild loss of memory, attention, concentration, or executive functions. See March 2015 rating decision. Thus, the Board has limited the analysis below to consideration of the Veteran's symptoms and impairments other than those that were considered in the assignment of the current 10 percent rating for the service-connected TBI. See 38 C.F.R. § 4.14. Turning to the evidence, during a VA mental health assessment completed in April 2014, the Veteran was noted to have symptoms consistent with major depressive disorder, including trouble sleeping and concentrating. The Veteran reported passing suicidal ideation in the last year with no current plan. The Veteran also reported he experienced hallucinations and noted he was unable to stop or control worrying nearly every day. In May 2014, the Veteran submitted a PTSD worksheet; it was noted that he was depressed and did not go out in public and was unable to be in crowds. The Veteran stated he felt happy one second then felt nothing, and his family and work seemed less important since returning from combat, and small things agitated him. He reported he thought of suicide or hurting other people several times. See May 2014 PTSD worksheet. A May 2014 statement from the Veteran's spouse stated she noticed that he became distant, seemed frustrated and angry, and he dropped out of the state police academy twice, which was a dream of his. She raised concern that one day the Veteran may think she and her children did not need him any longer and he would leave, "or worse." She further stated that he would forget where he was going all the time, had insomnia, and severe headaches, along with terrifying nightmares. She stated the Veteran was never happy, never smiled, or had any emotion other than anger and refused to do anything social or in public, and once tried to go watch his daughter at a cheer competition but got so nervous and upset he had to leave before it started. She stated that he is the definition of impulsive. In a March 2015 VA treatment record, the Veteran reported that he became dysphoric while drinking alone and contemplated committing suicide. In March 2015, the Veteran was afforded a VA examination. The Veteran and his spouse reported that the severity of his PTSD seemed to have worsened to moderate in degree, and the examiner noted the Veteran's ability to cope with symptoms of PTSD appeared to have decreased since his last examination. The Veteran reported frequent conflict with his spouse and that his mood and reactivity negatively affected relationships. He had increased sleep difficulties in the past year. He also reported his occupational functioning was relatively better but stated he had increased his use of vacation leave at work in the past few months due to low motivation at work. He also noted some heightened fear on certain calls and increased anxiety during court sessions. He denied current suicidal or homicidal ideation, plan, or intent. He stated he recently had a physical altercation with a neighbor. The examiner found that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. Symptoms included recurrent, involuntary, and intrusive distressing memories of the traumatic events; persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; persistent distorted cognitions about the cause or consequences of the traumatic events that lead to the individual to blame himself or others; persistent negative emotional state; feelings of detachment or estrangement from others; irritable behavior and angry outbursts, typically expressed as verbal or physical aggression towards people or objects; problems with concentration; sleep disturbances; depressed mood; and anxiety. The examiner indicated that the Veteran's PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner found that the Veteran's memory for short- and long-term history was grossly intact. His thought processes were logical, linear, and goal-directed, and he was deemed competent to manage financial affairs. In September 2015, the Veteran underwent another VA mental health assessment. The Veteran reported he would wake up more than 5 times a night and had nightmares several nights a week. He had thoughts of "taking his own life," but had no current plan to do so. He had anxiety but no panic attacks. He also reported his memory was getting worse. In January 2016, the Veteran was afforded a VA PTSD examination. He reported anger and night terrors and stated he could not stand the crowds at his children's games. He stated he did not have any close friends but spoke with army buddies, he did construction work on his days off, and enrolled in school to obtain liberal arts degree. However, he stated his anxiety was forcing him out of his law enforcement job because he had panic attacks when he went out on calls, which he described as tightness in the chest, light headedness, headaches, and felt like he was going to explode. He reported he sometimes forgets where he was going. The examiner found that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The examiner noted symptoms including recurrent, involuntary, and intrusive distressing memories of the traumatic events; persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; recurrent distressing dreams in which the content and or effect of the dream are related to the traumatic event; marked physiological reactions to internal or external cues that symbolize or resemble as aspect of the traumatic events; inability to remember important aspects of the traumatic events; markedly diminished interest or participation in significant activities; irritable behavior and angry outbursts, hypervigilance; exaggerated startle response; sleep disturbance; depressed mood; anxiety; and suspiciousness, and the symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The Veteran denied having suicidal or homicidal ideations. According to an August 2019 VA treatment record, the Veteran reported that his PTSD was stable, and denied current suicidal or homicidal ideation. In September 2020, the Veteran was afforded a VA PTSD examination. The Veteran reported that his family relationships were strained, and he rarely socialized outside the home. He reported he is employed with some issues with job performance resulting in a few suspensions. He attempted to return to college but was unable to do in-person classes. The Veteran reported that most existing symptoms had remained stable and with no new symptoms. The examiner found that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency. The examiner also found that the Veteran experienced a persistent negative emotional state; had markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; persistent inability to experience positive emotions; marked alterations in arousal and reactivity associated with the traumatic events, including irritable behavior and angry outbursts; hypervigilance; exaggerated startle response; problems with concentration; and sleep disturbance. In addition, the examiner determined that the Veteran had symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation or mood, as well as difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the Veteran's PTSD symptoms caused clinically significant stress or impairment in social, occupational, and other important areas of functioning. After review of the evidence, both medical and lay, the Board finds that a rating of 70 percent is warranted for the entire period on appeal. First, the Board notes that the evidence includes the Veteran's reports of suicidal ideation during the appeal period. The Court has held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). In Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. Id. at 19-23. The Board finds such is similar in this case as the Veteran indicated suicidal ideation at several points during the appeal period. In addition, the Veteran's spouse stated she was concerned he may leave the family, "or worse." The Veteran also reported having panic attacks at work whenever he went out on calls and during those times, he experienced tightness in the chest, light-headedness, and headaches, and felt like he was "going to explode." The Board notes that the March 2015 and January 2016 VA examiners determined that the Veteran's PTSD resulted in occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. However, the Veteran stated that he had decreased motivation to go to work and tended to take leave to avoid going to work in addition to not being social with work colleagues. Moreover, he stated that he does not have any close friends, and only talks to his military friends. The Veteran and his spouse recounted several instances where the Veteran was unable to function in public, to include attending his daughter's sporting events, in-person classes for college, and dropping out of the state police academy. In addition, the Veteran's spouse noted that the Veteran is impulsive, and the family "walks on eggshells" around the Veteran. She stated that the Veteran accuses her of things and showed no emotion, except anger and frustration. Lastly, the Veteran stated that he got into a physical altercation with his neighbor. For these reasons, the Board finds that the Veteran's PTSD symptoms have more nearly approximated occupational and social impairment with deficiencies in most areas throughout the rating period on appeal, warranting a 70 percent rating. However, a rating higher than 70 percent is not warranted because the evidence does not reflect that the Veteran's PTSD has caused total occupational and social impairment. There is no evidence of disorientation to time or place, persistent delusions or hallucinations, persistent danger of hurting self or others, grossly inappropriate behavior, gross impairment in thought processes or communication, intermittent inability to perform activities of daily living, or memory loss for close relatives, own occupation, or own name. While the record reflects that the Veteran has difficulty at work and in relationships with friends and family, he has maintained employment, remained married, and stayed in contact with military friends. A higher rating of 100 percent based on total social and occupational impairment generally requires symptoms severe enough to severely distort the individual's perception of reality, which is not shown by the record. For these reasons, total social and occupational impairment is not demonstrated by the record, and a 100 percent rating for the Veteran's PTSD is not warranted. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for migraine headaches is remanded. New VA treatment records have been added to the claims file since the claim for an increased rating for migraine headaches was last adjudicated in the September 2020 Supplemental Statement of the Case (SSOC). However, a SSOC was not issued with consideration of this new VA-generated evidence. While 38 U.S.C. § 7105(e) provides an automatic waiver of initial Agency of Original Jurisdiction (AOJ) review if a veteran submits evidence to the AOJ or the Board with, or after submission of, a Substantive Appeal, this provision is does not apply to VA-generated evidence, such as VA treatment records. 38 U.S.C. § 7105(e). In March 2021, the Board sent the Veteran a letter informing him that the new evidence had been added to his claims file and that he could waive initial AOJ review. In April 2021, the Veteran responded and explicitly indicated that he did not waive initial AOJ review of this evidence. Therefore, remand is required for the AOJ to consider this evidence in a supplemental statement of the case. The matters are REMANDED for the following action: Readjudicate the remaining issue on appeal, ensuring that all relevant evidence is considered. Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.