Citation Nr: 22015296 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 15-31 525 DATE: March 17, 2022 ORDER Entitlement to an increased disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI) and alcohol use disorder (AUD) for the period prior to June 16, 2021 is denied. REMANDED Entitlement to service connection for epiretinal membrane is remanded. FINDING OF FACT For the period prior to June 16, 2021, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. CONSLUSION OF LAW For the period prior to June 16, 2021, the criteria for a disability rating in excess of 70 percent for service-connected PTSD with TBI and AUD 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from January 1967 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran's claims in May 2021, and upon remand the Veteran was granted service connection for peripheral neuropathy of the right lower extremity, as well as an increased 70 percent disability rating, effective December 28, 2017, and a 100 percent disability rating, effective June 16, 2021, for the service-connected psychiatric disability. See October 2021 Decision Review Officer Decision. As such, the Board finds that the Veteran's claims for service connection for a right lower extremity condition, as well as an increased disability rating for his service-connected PTSD with TBI and AUD for the period beginning June 16, 2021 have been granted in full and are therefore no longer on appeal. For reasons discussed at greater length below, the Board finds that an additional remand is needed prior to the adjudication of the Veteran's claim for entitlement to service connection for epiretinal membrane. 1. Entitlement to an increased disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI) and alcohol use disorder (AUD) for the period prior to June 16, 2021 is denied. The Veteran contends that he is entitled to a higher disability rating for his service-connected PTSD with TBI and AUD for the period prior to June 16, 2021. By way of history, service connection has been in effect for the Veteran's psychiatric disorder since January 1970, at which time a noncompensable rating was established. In a February 2009 rating decision, the rating was increased to 30 percent. Most relevant to this appeal, in December 2012, the Veteran brought a claim for increase. A November 2013 rating decision continued the 30 percent rating. The Veteran appealed, contending that he is entitled to at least a 70 percent disability rating. See August 2015 Form 9. In May 2021, the Board remanded the claim to provide the Veteran a new VA examination. In an October 2021 rating decision, the rating was increased to 70 percent, effective the date of his claim for increase in December 2012. Under the General Formula for Mental Disorders (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). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 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. VA and private treatment records, the August 2013 VA medical examination, the October 2017 and November 2019 private medical examinations, the June 2021 VA medical opinion, and the Veteran's lay statements show that the Veteran's PSTD with TBI and AUD was manifested by symptoms associated with a 70 percent rating (suicidal ideation, neglect of personal hygiene, inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances, impaired impulse control, and near-continuous panic or depression), and no symptoms associated with a 100 percent rating. He also had symptoms that are not listed with a specific rating, such as intrusive memories, distressing dreams, cued psychological distress, cued physiological reactions, avoidance of memories, thoughts, feelings and avoidance of external reminders, exaggerated negative beliefs or expectations, persistent emotional state, diminished interest or participation activities, irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, problems of concentration, and sleep disturbance. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. To point, the Veteran's irritable behavior and angry outbursts are similar to that of impaired impulse control which is contemplated by the 70 percent rating criteria, while his symptoms of such as intrusive memories, distressing dreams, cued psychological distress, cued physiological reactions, avoidance of memories, thoughts, feelings and avoidance of external reminders, exaggerated negative beliefs or expectations, persistent emotional state, diminished interest or participation activities are similar to that of disturbances of motivation and mood which is contemplated by the lesser 50 percent rating criteria. The Board notes that the record indicates that the Veteran expressed suicidal ideation/gestures, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent 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, as the August 2013 VA examiner, and October 2017 and November 2019 private medical examiners did not find the Veteran to be a persistent danger to himself or others. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Here, Board notes that upon remand, the June 2021 VA examiner opined that Veteran's diagnosed PTSD most likely vacillated between a moderately severe to the severe range since the September 2013 VA examination. The Board finds said opinion to be highly probative on the matter as it is supported by the evidence submitted in support of the Veteran's claim indicating that he experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas during the period on appeal, rather than total social and occupational impairment. See October 2017 and November 2019 private medical examinations. Per the October 2017 private medical examination, the Veteran experienced depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, suicidal ideation, and impaired impulse control. Here, the Board notes that the aforesaid symptomatology is fully contemplated by the currently assigned 70 percent disability rating, while no symptoms contemplated by a total disability rating were indicated. Similarly, the November 2019 private medical examiner and August 2013 VA medical examiner also did not indicate that the Veteran suffers from any symptoms contemplated by a total disability rating. Upon review of the evidence of record, the Board does not find that the Veteran experienced any symptoms contemplated by a 100 percent rating, and therefore the evidence ultimately does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating, the rating which the Veteran contends he is entitled to upon perfecting his appeal. See August 2015 Form 9. In short, the evidence of record persuasively 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. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. REASONS FOR REMAND 2. Entitlement to service connection for epiretinal membrane is remanded. Upon review of the record, the Board notes that a direct theory of entitlement was raised by the Veteran in stating that, besides his traumatic brain injury incident in service, of which is now service-connected, the Veteran also suffered a separate trauma to his right eye when he walked into a "gun tube" in December 1967. Here, the August 2013 VA examiner disregarded said incident as being an unreliable account given that the Veteran's service records do not evidence the incident ever having occurred. The Board finds the August 2013 VA examiner's opinion to be inadequate to the extent that sole rationale for the opinion was a lack of documentation in the Veteran's service records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The absence of evidence in a veteran's service treatment records, alone, may not serve as the basis for a negative opinion as to direct service connection). Accordingly, the Board finds that an addendum medical opinion should be acquired on remand to address the Veteran's direct theory of entitlement as having incurred during service. The matters are REMANDED for the following action: Service connection for epiretinal membrane... Obtain an addendum medical opinion from an appropriate clinician for the Veteran's claimed for epiretinal membrane condition. It is left to the discretion of the VA examiner as to whether an in-person VA examination should be scheduled in addressing the etiology of the Veteran's claimed for condition. Upon review of the pertinent evidence of record, to include this remand and as indicated below, the VA examiner is requested to opine as to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's claimed for epiretinal membrane condition incurred in service, or is otherwise directly to service, to include as due the alleged injury to his right eye when he walked into a "gun tube" during service in December 1967. See VBMS, document titled "VA examination," receipt dated August 1, 2013 (therein Veteran reports having sustained an injury directly to his right eye after having walked into a "gun tube"). Note that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, 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.