Citation Nr: 21040502 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 15-18 634A DATE: July 5, 2021 ORDER Prior to April 14, 2020, a rating of 70 percent, but no higher, for posttraumatic stress disorder with alcohol use disorder ("PTSD") is granted. From April 14, 2020, a rating in excess of 70 percent for PTSD is denied. Service connection for temporomandibular joint (TMJ) dysfunction, to include as secondary to service-connected PTSD, is denied. Service connection for insomnia, to include as due to an undiagnosed illness, is denied. Service connection for a chronic cough is granted. REMANDED Entitlement to service connection for a bilateral hip condition, to include as secondary to service-connected foot disabilities, is remanded. Entitlement to service connection for asthma, to include as secondary to service-connected sinusitis, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's PTSD has been manifested by symptoms that most closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Total occupational and social impairment has not been shown. 2. The Veteran is not shown to have had TMJ dysfunction, or related functional impairment that rises to a level to affect his earning capacity, during the pendency of this claim. 3. The Veteran's sleep impairment, claimed as insomnia, has been attributed to his service-connected PTSD. 4. Resolving reasonable doubt in his favor, the Veteran's chronic cough is a result of his military service. CONCLUSIONS OF LAW 1. Prior to April 14, 2020, the criteria for a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. From April 14, 2020, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to service connection for TMJ dysfunction, to include as secondary to service-connected PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for insomnia have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 5. The criteria for entitlement to service connection for a chronic cough have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from May 2005 to September 2005, from October 2007 to January 1, 2008, and from January 5, 2008 to October 2009. This case is before the Board of Veterans' Appeals (Board) on appeal from September 2013 and August 2014 Regional Office (RO) rating decisions. In August 2018, the Board remanded the Veteran's claims for further development, which has since been substantially completed with respect to the issues decided herein. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In a July 2020 rating decision, the RO increased the rating for PTSD to 70 percent, effective April 14, 2020. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The issue on appeal is recharacterized to reflect that partial grant of benefits during the claim period. The Board also remanded the issues of entitlement to service connection for a neck disability and sinusitis in August 2018. However, in February 2021, the RO granted service connection for those conditions. Thus, those issues have been resolved and are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The issue of entitlement to a TDIU due to service-connected PTSD has also been raised by the record during the course of this appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). It is addressed in the Remand portion of this decision, below. Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a rating in excess of 50 percent prior to April 14, 2020, and in excess of 70 percent thereafter, for PTSD The Veteran is currently in receipt of a 50 percent rating for PTSD prior to April 14, 2020, and a 70 percent rating thereafter. He contends that his symptoms warrant an even higher rating. The regulations for rating mental disorders are found in 38 C.F.R. §§ 4.125-4.130. PTSD is evaluated under Diagnostic Code 9411, which is rated according to the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Under the General Rating Formula, and as relevant here, a 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. Following review of the record, the Board finds that a 70 percent rating, but no higher, is warranted throughout the claim period. In so finding, the Board acknowledges that a VA examiner who evaluated the Veteran in April 2014 characterized his symptoms as productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. However, the evidence of record during that period also documented, on multiple occasions, psychiatric symptoms that included suicidal ideation and impaired impulse control. For example, during that examination, the Veteran reported that his parents did not want to have anything to do with him due to his drinking and violence. He noted that he went to their home for Thanksgiving in 2013 but did not stay long because he was not being respectful and offended them. When evaluating the Veteran's psychiatric symptoms, the 2014 examiner noted irritable behavior and angry outbursts with little or no provocation, depressed mood, anxiety, chronic sleep impairment, and suspiciousness. Although the Veteran denied suicidal or homicidal ideation during the 2014 examination, he reported suicidal ideation in correspondence on multiple occasions prior to 2020. See, e.g., September 2013, October 2013, November 2013, September 2014, and June 2015 statements. In June 2014 correspondence, the Veteran reported that his wife had left him because she could no longer take the verbal abuse or dysfunction of their relationship. In short, resolving reasonable doubt in the Veteran's favor, the Board finds that the foregoing symptoms, viewed collectively, warrant increasing the rating for his PTSD from 50 percent to 70 percent throughout the period prior to April 14, 2020. It does not find, however, that the Veteran's psychiatric symptoms were consistent with the criteria for a 100 percent rating at any point. See 38 C.F.R. § 4.130, Diagnostic Code 9411. In this case, the amount of impairment the Veteran experiences is clearly significant, particularly later in the claim period. However, despite the Veteran's reported symptoms, the evidence of record does not support a finding of total occupational and social impairment, as is required by the diagnostic code, at any point. In reaching the conclusion that the criteria for a 100 percent rating for PTSD are not met, the Board has considered both the medical and lay evidence of record throughout the claim period. The Board particularly acknowledges that, during an April 2020 VA examination, the examiner noted symptoms of depressed mood, anxiety, suspiciousness, near continuous panic attacks, mild memory loss, chronic sleep impairment, impaired judgment, disturbance of motivation mood, difficulty in adapting to stressful circumstances, suicidal ideation, grossly inappropriate behavior, and neglect of personal appearance. The Board also acknowledges the Veteran's descriptions of social and occupational impairment during that examination. Specifically, the Veteran stated that he had been married to his wife for five years and that they had just had a baby, but that he was concerned his marriage was in trouble. He stated that he had friends with whom he served that he speaks to once a week, but no local friends or groups. The Veteran also stated that he was put on leave from the VA due to his issues with PTSD. Further, the Veteran stated that he had been very irritable, hypervigilant, paranoid, and has had suicidal ideation that he has never acted upon. The Board also acknowledges the Veteran's statements that his PTSD is worse than the rating he currently receives. For example, in a July 2020 statement, the Veteran asserted he was entitled to the "highest rating" for PTSD. He reported homicidal ideation and verbal and physical altercations. He described the lack of motivation he experiences at work, particularly in stressful or demanding situations, and the anger he has experienced on the job, which he described as "grossly inappropriate behavior." The Veteran also stated that he experiences total occupational and social impairment with decrease in work efficiency and intermittent periods of inability to perform occupational tasks. He noted that his wife and child were his protective barriers against suicide. The Veteran further stated that he was reprimanded weekly at work due to neglect of personal appearance and hygiene, and that he experienced impaired impulse control, depression, anxiety, chronic sleep impairment, social isolation, panic attacks, hypervigilance, and difficulty adapting to stressful situations on a daily basis. The Veteran reported that he was currently on leave from his job due to grossly inappropriate behavior and his issues with physical aggression. Notably, many of the symptoms the Veteran cited in his July 2020 statement are contemplated by the 70 percent rating criteria. For example, suicidal ideation, impaired impulse control (such as unprovoked irritability with period of violence), difficulty in adapting to stressful circumstances (including work or a worklike setting), neglect of personal appearance and hygiene, and near continuous panic or depression are all explicitly listed in those rating criteria. More to the point, the Veteran's own statements, viewed collectively, do not establish total occupational and social impairment. He discusses ongoing personal relationships that act as protective barriers and has not endorsed or exhibited gross impairment in thought processes or communication, persistent delusions or hallucinations, disorientation to time and place, or memory loss for names of close relatives, own occupation, or own name. The Board again acknowledges that the Veteran expressed suicidal ideation, which is similar to the persistent danger of self-harm contemplated by the 100 percent rating criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran also denied suicidal ideation at various times during the claim period and noted during the April 2020 VA examination that he had "too much to live for" to act on those thoughts. Thus, the Board finds that this symptomatology most closely approximates the suicidal ideation included in the 70 percent rating criteria, as opposed to a persistent danger of self-harm. Finally, although the Veteran cited, and the 2021 VA examiner noted, grossly inappropriate behavior and neglect of personal hygiene, the Board does not find that the severity of these symptoms, as generally documented in the claims file, rises to a level consistent with the 100 percent rating criteria. Notably, the criteria for a 70 percent rating include neglect of personal appearance and hygiene and impaired impulse control, which comports with the Veteran's description of the behavior he describes as grossly inappropriate. In short, while the Veteran did experience some symptoms contemplated by a 100 percent rating during the claim period, the evidence overall does not demonstrate the level of impairment associated with that rating. As explained above, the majority of the Veteran's symptoms were either contemplated by or more consistent with a 70 percent rating. More to the point, while the issue of entitlement to a TDIU has been raised by the record and is discussed in the Remand portion of this decision, below, the evidence does not reflect that the Veteran is totally socially impaired, as evidenced by his marital/family status and his ongoing friendships with other veterans. As 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 rating at any point during the claim period, entitlement to a rating in excess of 70 percent for PTSD must be denied. Service Connection Generally, to establish service connection, a claimant 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. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. 1. Entitlement to service connection for TMJ dysfunction, to include as secondary to service-connected PTSD The Veteran is seeking service connection for TMJ, which he asserts is secondary to his service-connected PTSD. Following review of the evidence of record, service connection for TMJ must be denied. The Veteran's service treatment records (STRs) contain no mention of complaints, diagnosis, or treatment for TMJ. In 2009, he underwent 3rd molar surgery and reported symptoms of popping on opening nearly every time, limited opening, and pain. However, treatment records associated with those procedures contain no mention of TMJ, and the Veteran's examinations in August 2016 and April 2019 show normal mandibular relationship and no symptoms associated with TMJ. A radiology report conducted in November 2020 also revealed normal mandibular series. Further, a January 2021 VA examiner found that the Veteran did not have a diagnosis of TMJ. The examiner also noted that the Veteran described wearing a mouth guard to deal with bruxism but found no objective evidence to support bruxism, TMJ, or arthritis. The threshold matter that must be addressed in a service connection claim is whether there is competent evidence that the Veteran currently has (or during the pendency of the claim has had) the disability for which service connection is sought. Here, the record does not show that the Veteran has (or during the pendency of the instant claim has had) TMJ. Although he described subjective pain one to two times a week during his 2021 VA examination and previously described spontaneous pain, popping, and clicking, the record does not include evidence during the pendency of the claim that indicates functional impairment that rises to a level to affect the Veteran's earning capacity. In the absence of such impairment, the claim for service connection must be denied. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Brammer v. Derwinski, 3 Vet. App. At 225; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). There is no doubt to resolve, as the evidence is not roughly in equipoise. 2. Entitlement to service connection for insomnia The Veteran is also seeking service connection for insomnia, which he asserts is unrelated to his service-connected PTSD. Following review of the evidence of record, the Board finds that the preponderance of the evidence establishes that the Veteran's sleep impairment is a symptom of his PTSD. As a result, service connection for insomnia is not warranted. The Board acknowledges the Veteran's documented history of credible complaints of insomnia. However, an April 2020 VA examiner opined that the Veteran's insomnia was considered a symptom of PTSD, not a separate diagnosis. In support of this opinion, the examiner noted that the Veteran was diagnosed with mild sleep apnea, but the apnea was not considered a significant contributing factor to the insomnia. The examiner further stated that the Veteran's onset of insomnia was consistent with the onset of PTSD symptoms. Additionally, the examiner stated that when asked what kept him awake, the Veteran cited racing thoughts, fear of not waking up, and nightmares. Previously, an April 2014 VA examiner had also characterized the Veteran's sleep impairment as a symptom of his PTSD. The Board also acknowledges that the Veteran is a Persian Gulf War veteran and that he has alternatively asserted that his insomnia is a sign or symptom of undiagnosed illness. However, as already explained, the Veteran's sleep disturbances have been attributed to his service-connected PTSD, a known clinical diagnosis. Thus, service connection is also not warranted on that basis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. In finding that service connection for insomnia is not warranted, the Board acknowledges the Veteran's sincere belief that he experiences insomnia that is unrelated to his service-connected PTSD. However, although competent to report sleep symptoms, the Veteran is not competent to attribute sleep impairment to one cause or another, as such requires knowledge of medical and psychiatric interactions. As a result, the Board finds the VA examiners' findings on that question more probative than those of the Veteran. The regulation regarding "pyramiding" is implicated here, as the evaluation of the same disability/symptoms under different diagnoses is to be avoided. See 38 U.S.C. § 1155; C.F.R. § 4.14. As the Veteran's described sleep impairment has been attributed to his service-connected PTSD by medical professionals, the claim for service connection for insomnia as a separate, ratable entity must be denied. There is no doubt to resolve, as the evidence is not roughly in equipoise. 3. Entitlement to service connection for chronic cough The Veteran is also seeking service connection for a chronic cough. Specifically, the Veteran contends that his chronic cough is due to his exposure to burn pits while in service. Following review of the evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a chronic cough is warranted. The Veteran's STRs are silent for any symptoms of a chronic cough prior to 2009. However, the Veteran's post-service treatment records reflect a diagnosis of chronic cough that began in 2009. During a February 2011 VA examination, the Veteran stated that while in Iraq he noticed a non-productive cough while engaging in physical activity. In September 2020, the Veteran underwent an examination for respiratory disorders. The examiner diagnosed the Veteran with chronic cough and went on to state both that there were no records in the file to support the presence of a cough and that the chronic cough was at least as likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. In support of the positive opinion, the examiner further stated that it was likely that the Veteran was exposed to all of the agents in Southwest Asia and this resulted in inhalation of noxious gases and exposure to infectious disease and likely resulted in the chronic cough. When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, it appears the 2020 VA examiner noted a lack of medical documentation of a cough in the Veteran's claims file but nevertheless concluded that the cough the Veteran described was related to in-service exposures. The Board finds that the examiner's opinion, coupled with the Veteran's description of his symptoms of coughing and their onset, brings the evidence addressing whether the cough is related to service into relative equipoise. Therefore, service connection for a chronic cough is warranted, and the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hip condition, to include as secondary to service-connected foot disabilities, is remanded. An August 2018 Board remand requested an aggravation opinion for the Veteran's bilateral hip condition. However, a September 2020 VA examiner opined that the Veteran's current bilateral hip condition was not a result of an in-service event and did not provide an opinion on whether that condition was aggravated by a service-connected disability. Unfortunately, as there has not been substantial compliance with the Board's previous remand directive, remand for an additonal opinion is required. Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for asthma, to include as secondary to service-connected sinusitis, is remanded. A September 2020 VA examiner stated that sinusitis can contribute to the cause of asthma. The Veteran is now service-connected for sinusitis, and the theory of entitlement to service connection for asthma on a secondary basis has been raised based on the examiner's opinion. Therefore, the Board cannot make a fully informed decision on the issue of entitlement to service connection for asthma, because no VA examiner has opined whether the Veteran's asthma is secondary to his service-connected sinusitis. Such an opinion must be obtained on remand. 3. Entitlement to a TDIU due to service-connected PTSD is remanded. As noted above, the Board finds that the issue of entitlement to a TDIU due solely to service-connected PTSD has been raised by the record. See April 2020 PTSD Disability Benefits Questionnaire; July 2020 Correspondence. However, additional development is necessary to obtain a full picture of the Veteran's education and work history. Specifically, on remand, the Veteran must be invited to submit an initial VA Form 21-8940. The matters are REMANDED for the following action: 1. Contact the Veteran and ask him to provide a complete history of his education and occupational experience, to include a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. 2. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hip condition was aggravated by a service-connected disability, to specifically include the Veteran's service-connected foot disabilities. In providing this opinion, please specifically consider and discuss the article about pronation and hip pain submitted by the Veteran in September 2013. 3. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not (50 percent probability or greater) that the Veteran's asthma was (1) caused by or (2) aggravated by his service-connected sinusitis. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica 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.