Citation Nr: 22017971 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 20-21 977 DATE: March 27, 2022 ORDER Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an increased disability rating for unspecified depressive disorder, somatic symptom disorder with predominant pain with anxiety features including sleep impairment and unspecified anxiety disorder, presently rated as 70 percent disabling prior to May 1, 2019, and as 50 percent disabling from May 1, 2019, to April 16, 2020, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran is presently service-connected for unspecified depressive disorder, somatic symptom disorder with predominant pain with anxiety features including sleep impairment and unspecified anxiety disorder; he does not have a separate or related diagnosis of PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from October 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In his VA Form 9, the Veteran requested a hearing before a Veterans Law Judge. However, in December 2021, the Veteran submitted a written statement withdrawing that request. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for PTSD The Veteran claims service connection of PTSD, which he asserts is related to active service. The Board finds that the claim should be denied. Initially, the Board recognizes that the scope of a claim for a psychiatric disability, particularly for PTSD, include any mental disability which may reasonably account for the Veteran's description of his symptoms. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, the Veteran is already in receipt of service connection for an acquired psychiatric disability, defined as "unspecified depressive disorder, somatic symptom disorder with predominant pain with anxiety features including sleep impairment and unspecified anxiety disorder" In his present appeal, he seeks service connection of a separate psychiatric disorder, which he claims as PTSD. Therefore, the initial question before the Board is whether or not the Veteran has a diagnosis of PTSD which is separate and distinct from his other service-connected psychiatric disorder. A diagnosis of PTSD requires conformity with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. §§ 3.304(f), 4.125(a). After reviewing the claims file, the Board determines that the Veteran does not have a diagnosis of PTSD at any point during the period on appeal. In order to clarify the nature of the Veteran's psychiatric symptoms, the Veteran underwent a VA psychiatric disorders examination in November 2016, September 2018, and July 2020. After a thorough evaluation, the examiners determined that a diagnosis for PTSD is not warranted. In support, the examiner specifically noted that while the Veteran had certain psychiatric symptoms and an adequate stressor to support PTSD, his symptoms were nevertheless not of the requisite nature, severity, and frequency to establish a diagnosis of PTSD. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Further, the examiners also opined that the Veteran's psychiatric symptoms were caused his other service-connected acquired psychiatric disorder(s) but not PTSD. These diagnoses, or rather non-diagnosis of PTSD and attribution of his symptoms to the other service-connected disability, was made in contemplation of the DSM-5 criteria, as required by the applicable regulations and statutes. To the extent the medical evidence indicates symptoms and/or a diagnosis of PTSD, greater probative value is placed on the conclusions of the VA examiner's determination that a diagnosis for this disorder is not warranted. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized the unique probative value of opinions provided by VA mental health in the context of VA examinations for a number of reasons, to include the special training VA practitioners receive in conducting such examinations, the amount of quality review these examination reports receive, the ability to review the claims file, and VA programs to ensure consistency. See Nat'l Org. of Veterans' Advocates, Inc. v. Sec. Of Veterans Affairs, 669 F.3d 1340 (Fed. Cir. 2012) (citing 75 Fed. Reg. 39,843, 39,847-48 (July 13, 2010)). Therefore, while the presence of some psychiatric symptoms was reported in the record, these symptoms alone without an underlying PTSD diagnosis are insufficient to establish service connection for PTSD. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Moreover, and while not outcome determinative, the Board notes that the rating criteria for PTSD (Diagnostic Code 9411) and the rating criteria for other psychiatric disorders such as depression or anxiety are identical under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The Federal Circuit has held that two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology. See Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). While the Court noted it was possible for two mental disabilities to have different symptoms and therefore be evaluated separately, if the manifestations of the two mental disabilities were the same, a separate evaluation was not warranted. In this case, the Veteran's symptoms, which he asserts are related to PTSD, have been attributed to his other service-connected psychiatric disabilities, and therefore he has received a rating based on these symptoms. To afford a separate rating based on a separate diagnosis of PTSD (which the Board notes he does not have) would constitute impermissible pyramiding of ratings. 38 C.F.R. § 4.14. In light of the above, the Board must deny the Veteran's claim, as he does not have a present diagnosis of PTSD and his reported symptoms are already subject to service-connection as part of his unspecified depressive disorder, somatic symptom disorder with predominant pain with anxiety features including sleep impairment and unspecified anxiety disorder. As such, the claim fails the primary criterion of service connection, namely, a present diagnosis of PTSD which is separate and distinct from his other service-connected disorder. In this case, there is no diagnosis of PTSD, his symptoms are already subject to service connection, and therefore the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND Inasmuch as the Board regrets further delay in the adjudication of the issues remaining on appeal, a remand is necessary to ensure proper development of those claims. 2. Entitlement to an increased disability rating for unspecified depressive disorder, somatic symptom disorder with predominant pain with anxiety features including sleep impairment and unspecified anxiety disorder, prior to April 16, 2020, is remanded The Veteran filed his appeal for, among other things, an increased disability disorder for his service-connected psychiatric disorder in April 2018. In August 2018, the RO issued a rating decision which addressed the majority of the issues on appeal. In October 2018, the RO issued the rating decision appealed herein, which addressed three specific issues. Specifically, the rating decision denied service connection of PTSD as separate from the already service-connected psychiatric disorder, denied entitlement to TDIU, and proposed to decrease the Veteran's rating for his psychiatric disorder from 70 percent disabling to 50 percent disabling. In January 2019, the RO issued a rating decision which instituted that reduction. In June 2019, the RO issued a rating decision which found clear and unmistakable error with the effective date assigned for the reduction, and adjusted it to become effective May 1, 2019. In August 2019, the Veteran submitted a supplemental claim which appealed the rating for his psychiatric condition. The RO issued a letter rejecting that claim as premature. However, that same month, the Veteran also submitted a notice of disagreement which specifically addressed all three issues addressed in the October 2018 rating decision, to include his belief that he was entitled to a higher rating for his psychiatric disorder beyond those proposed in the October 2018 rating decision. In March 2020, the RO issued a statement of the case which only addressed the question of service connection for PTSD and entitlement to TDIU. To date, the RO has not issued a statement of the case which addressed the rating for the Veteran's service-connected psychiatric disorder. Because the Veteran has filed a valid notice of disagreement with the rating assigned for his psychiatric disability, as addressed in the October 2018 rating decision, the Board must remand this issue so that a statement of the case may be issued, and the Veteran given adequate time to appeal any conclusions reached therein. See Manlincon v. West, 12 Vet. App. 238 (1999). In remanding this issue, the Board notes that the Veteran filed a subsequent claim in April 2020 which resulted in a grant of a 100 percent disability rating for his psychiatric disability effective April 16, 2020. As that constitutes a complete grant of the maximum rating allowed from that period forward, consideration of an increased rating for the service-connected psychiatric disorder at this time is limited to the period between the April 2018 claim for an increase, and April 16, 2020. 3. Entitlement to TDIU is remanded As noted above, the RO has yet to issue a statement of the case regarding the schedular rating for the Veteran's service-connected psychiatric disorder, for the period prior to April 16, 2020. Unfortunately, absent development of that appeal, the question of the Veteran's basic schedular entitlement to TDIU for a significant portion of the appeal period remains in question. Specifically, from May 1, 2019, to April 16, 2020, the Veteran's combined disability rating is only 60 percent with no single disability rated greater than 50 percent disabling. 38 C.F.R. § 4.16(a). Because the outcome of any development regarding the Veteran's rating for a psychiatric disability between May 1, 2019, and April 16, 2020, may directly impact the Veteran's basic schedular entitlement to TDIU during that period, this issue is not yet ripe for final review, and must be remanded pending the outcome of that appeal. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Billinger, 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.