Citation Nr: 22016465 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-34 497 DATE: March 22, 2022 ORDER Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a gastrointestinal disorder, claimed as gastroenteritis is remanded. Entitlement to a compensable rating for residuals of partial colectomy is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's PTSD has, at most, manifested in occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1987 to September 1991, from August 1992 to April 1994, from April 2006 to December 2006, from January 2008 to March 2011, and from January 2015 to September 2015. The Veteran also received a Purple Heart during a period of civilian service. This case comes on appeal of a June 2016 rating decision. The Veteran testified at a Board hearing in March 2021. In August 2021, the Board, in pertinent part, remanded the issues of entitlement to an initial rating in excess of 30 percent for PTSD, a compensable rating for residuals of a partial colectomy, and service connection for gastroenteritis. The Board also remanded the issues of entitlement to service connection for disorders of the cervical spine, low back, right lower extremity, and left lower extremity. In December 2021, the agency of original jurisdiction (AOJ) issued a rating decision granting those issues in full. Accordingly, those issues are no longer on appeal. Notably, in the December 2021 rating decision, the AOJ also granted entitlement to an initial rating of 50 percent for PTSD. However, in the absence of affirmative evidence to the contrary, the Veteran is presumed to seek the maximum benefit available. AB v. Brown, 6 Vet. App. 35, 38 (1993). Since a higher schedular rating is available for PTSD, the December 2021 rating decision represents only a partial grant, and the issue of entitlement to an initial rating in excess of 50 percent for PTSD remains on appeal. Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD) Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). As was discussed above, the Veteran's PTSD is rated at 50 percent throughout the period on appeal under 38 C.F.R. § 4.130, Diagnostic Code 9411. For rating purposes, Diagnostic Code 9411 is included among the General Rating Formula for Mental Disorders ("Rating Formula") of 38 C.F.R. § 4.130. To be assigned a rating of 50 percent, the Veteran must demonstrate 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. To be assigned a rating of 70 percent, the Veteran must demonstrate 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 that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. To be assigned a rating of 100 percent, the Veteran must demonstrate 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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). In Vasquez-Claudio v. Shinseki, F.3d 112, 117 (Fed. Cir. 2013), the Court also held that a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Indeed, considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). The Veteran filed the present claim in June 2015 and the effective date of the claim is October 2015, the date she separated from active service. In November 2015, the Veteran underwent a VA PTSD examination. There, the examiner reported 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. At that time, the Veteran reported intrusive memories, panic attacks, anxiety, avoidance, self-blame, hypervigilance, sleep impairment, loss of concentration, persistent negative beliefs of others and the world, trouble remembering traumatic experiences, and occasional nightmares. The examiner reported that the Veteran had delayed onset of sleep and fatigue, loss of motivation and self-esteem, and constant irritability resulting in yelling, but no violence. The Veteran denied loss of appetite, suicidal ideation, crying, sadness, poor judgment, indecisiveness, poor hygiene, or avoidance of social situations. The Veteran noted that therapy had helped with her nightmares, hopelessness, and anxiety, although she still had occasional panic attacks. The examiner observed that the Veteran was casually dressed and appropriately groomed. Her gross psychomotor skills were within normal limits and she was consistently alert and oriented to all spheres. Thought processes were logical and goal directed, and there was no evidence or indication of perceptual disturbances. The Veteran's comprehension and expression appeared normal and she denied any history of suicidal or homicidal ideation. Following the June 2015 examination, the Veteran did not undergo any regular mental health treatment for some time, although the record demonstrates that she was prescribed psychotropic medication with limited success. However, in a November 2018 triage screening, the Veteran was shown to be positive for suicidal ideation over the previous two weeks. Indeed, at her August 2021 Board hearing, the Veteran reported that, although she had never had attempts, she had experienced some suicidal thoughts in the past. In early 2021, the Veteran began undergoing therapy treatment with VA. In March 2021 she reported ongoing conflicts with her ex-husband and mother, but stated that this was their baseline relationship. She reported that her mood had been good overall. On mental status examination, she was observed to be dressed casually and groomed appropriately. She was alert and oriented to all spheres. Her affect was euthymic and of full range. Speech, thought processes, and though content were all normal, with no evidence of audiovisual hallucinations. The Veteran showed adequate insight and reported no suicidal or homicidal ideations. The Veteran continued with therapy sessions through June 2021. During this time, she continued to experience stress and negative feelings related to her relationship with her ex-husband, especially as it pertained to prior couple's therapy. However, her mental status examinations remained relatively unchanged, with some notations of dysphoric mood and irritability that were deemed appropriate to the Veteran's mood and the content of her discussions. Throughout this time, there continued to be no indication of psychomotor disturbances, abnormal speech or thought processes, audiovisual hallucinations, or suicidal or homicidal ideations. Following the Board's remand, in December 2021, the Veteran underwent a new VA examination. There, the Veteran reported that she continued to experience intrusive thoughts about past traumatic experiences, expressing that she felt the symptoms had grown worse over the prior three years. She had worked as a victim advocate, which was a trigger for thoughts about past experiences, and she ultimately had to leave that job for other employment. She described her current job as stressful, but denied problems with work attendance or performance since starting it in 2016. The Veteran acknowledged having periods of nightmares, although denied recent nightmares. She reported feeling hypervigilant in crowds and experiencing general problems with concentration, but denied experiencing anger outbursts or exaggerated startle response. She endorsed experiencing periods of depression over the prior several years, but felt that she could generally manage her depression when in therapy. She stated that, in 2018, there was a period where she was having persistent thoughts of suicide, leading her to resume treatment. The Veteran described experiencing panic attacks on occasion, mainly if dealing with her ex-husband. She also described a difficulty with forgetting things, mainly short-term memory issues, such as misplacing her phone or money. She reported feeling as though she no longer knew how to be genuinely happy and that it was difficult to get back into previous outlets. Socially, the Veteran reported divorcing her ex-husband in June 2019. She had filed for divorce three times over the course of the marriage and generally felt depressed during that time. She reported that she had not sought further romantic relationships since the divorce and had no interest in doing so at that time. She described feeling close to her two children. She stated that she had difficulty trusting other people and felt disconnected from most. However, she reported having a few friends, specifically engaging with parents of other children involved with her daughter's competitive basketball program. The examiner observed symptoms of depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. On examination, the Veteran was alert and oriented to all spheres and her mood was anxious, with congruent affect. Her speech was logical and goal oriented, and her appearance was normal. Although she acknowledged prior suicidal ideations, she denied them at the time of the examination. Based on this available evidence, the Board finds that entitlement to a rating in excess of 50 percent is not warranted during the period on appeal. As was discussed above, the primary consideration in assessing mental health disabilities is the Veteran's overall occupational and social functioning. Here, the evidence demonstrates that the Veteran's PTSD has been obstructive to her job performance in the past, specifically in a role that triggered memories of her traumatic experiences. However, since leaving that position, the Veteran has remained employed in a job that she described as stressful, and she has done so without any notable deficiencies. Despite her documented irritability, there has been no indication that this has led to workplace conflicts, nor has the documented loss of motivation led to absences or diminished performance. Thus, although the PTSD may reduce the Veteran's reliability in some specific jobs, there is no indication that it results in deficiencies at work. Socially, the Veteran has identified difficulties engaging with people, especially due to a general lack of trust. However, she has identified having a few friends and is able to engage with other parents while participating in her daughter's competitive basketball team. Moreover, the Veteran appears able to co-parent her two children with her ex-husband, despite her ex-husband representing a source of stress and animosity for the Veteran. This indicates both a dedication to her immediate family, as well as the ability to manage contentious relationships, even if those relationships cause some difficulties. The Veteran has demonstrated a generally stable mood. Although she has exhibited depression and anxiety at times, this has generally been in response to negative external factors such as long-standing family conflicts and medical problems. Aside from some disturbances of concentration and short-term memory issues, the Veteran's thinking has been clear throughout the period on appeal. Moreover, the Veteran acknowledged that she has sought treatment when she felt her mental health symptoms were worsening, demonstrating sound judgment. The Board acknowledges that suicidal ideations are contemplated by a 70 percent rating. However, in evaluating psychiatric disabilities, the Board must consider the frequency, severity, and duration of symptoms. Vasquez-Claudio v. Shinseki, F.3d 112, 117 (Fed. Cir. 2013). Here, the Veteran's suicidal ideations have been both infrequent and of brief duration, generally at times of particularly notable stress. She has responded well to therapy and treatment, and has not experienced suicidal ideations as a general matter. Thus, the Board considers those symptoms to be outliers of the Veteran's overall social and occupational impairment due to PTSD. Additionally, the Veteran has not experienced other symptoms contemplated by higher rating criteria. For example, there is no evidence of obsessional rituals, illogical speech, near-continuous panic or depression, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, or inability to establish and maintain effective relationships. The Veteran has consistently been oriented to person, place, and time, and has shown no gross impairments in thought or behavior. Based on this, the evidence persuasively favors a finding that a rating in excess of 50 percent is warranted at any point during the period on appeal. As the evidence persuasively favors this finding, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a gastrointestinal disorder, claimed as gastroenteritis is remanded. 2. Entitlement to a compensable rating for residuals of partial colectomy is remanded. In its August 2021 decision, the Board remanded the issues of entitlement to service connection for gastroenteritis and entitlement to a compensable rating for residuals of partial colectomy to obtain clarification on the nature and etiology of the Veteran's claimed symptoms. Although the Veteran underwent additional VA examinations related to these claims, there are additional open medical questions stemming from those examinations that must be addressed before the Board is able to adjudicate these matters. Specifically, at these December 2021 examinations, the examiner identified the Veteran's report of intermittent left lower abdominal pain. However, the examiner reported that this was of unclear etiology and, since the Veteran had not had a workup for this condition, the examiner could not give a clear diagnosis. The examiner reported that without evidence of a thorough workup, it was not clear whether the symptoms represented a manifestation of the residuals of the Veteran's partial colectomy, or perhaps a separate disability secondary to the partial colectomy. The Board notes that this outstanding information appears to be crucial to evaluating the Veteran's claims. Based on the examiner's report, it is unclear whether the examiner was simply not capable of rendering a diagnosis and etiology due to the examiner's own limitations, or whether rendering such diagnosis and etiology was beyond the limits of medical science. Until there is clarification on this, the Board cannot consider VA's duty to assist by providing an adequate medical examination to have been satisfied. Therefore, on remand, the Veteran should be afforded an examination with an examiner who is specifically qualified to diagnose and assess gastrointestinal disorders. To the extent possible, the examiner should diagnose and address the etiology of the Veteran's claimed left lower abdominal pain. If it is not possible to diagnose this pain and/or address its etiology, the examiner should fully explain why this is the case and whether additional steps could be taken to do so. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of her claimed left lower abdominal pain with an examiner who is specifically qualified to address gastrointestinal disorders. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify all gastrointestinal disabilities, to specifically include the Veteran's claimed left lower abdominal pain. Then, with respect to each such diagnosed disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is approximately 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. In doing so, the examiner should answer the following questions: - Is the Veteran's claimed left lower abdominal pain a symptom of the residuals of the Veteran's partial colectomy? - Does the Veteran's claimed left lower abdominal pain represent a separate disability or condition from the residuals of the partial colectomy? - If the claimed left lower abdominal pain represents a separate disability or condition, is it at least as likely as not that this disability or condition was caused by or incurred in service? - If the claimed left lower abdominal pain represents a separate disability or condition, is it at least as likely as not that this disability or condition was caused or aggravated by the Veteran's residuals of partial colectomy? - If it is not possible to provide a diagnosis for the Veteran's claimed left lower abdominal pain, is this due to the limitations of medical science, or are there additional tests or evaluations at VA's disposal that can be undertaken to provide a diagnosis? The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. (Continued on Next Page) 2. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.