Citation Nr: A23028811 Decision Date: 10/18/23 Archive Date: 10/18/23 DOCKET NO. 200130-64293 DATE: October 18, 2023 ORDER A disability rating higher than 30 percent for posttraumatic stress disorder (PTSD) with anxiety and depression effective November 5, 2018 is denied. A compensable disability rating for hyperpigmentation, left arm due to burn is denied. A compensable disability rating for hyperpigmentation, right arm due to burn is denied. A compensable disability rating for hyperpigmentation, upper back due to burn is denied. FINDINGS OF FACT 1. For the entire appeal period, the severity, frequency, and duration of the Veteran's PTSD symptoms resulted in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. For the entire appeal period, the Veteran's left arm hyperpigmentation has been superficial and stable with no complaints of pain or tenderness, and it does not cause any disabling effects or functional impairment. 3. For the entire appeal period, the Veteran's right arm hyperpigmentation has been superficial and stable with no complaints of pain or tenderness, and it does not cause any disabling effects or functional impairment. 4. For the entire appeal period, Veteran's upper back hyperpigmentation has been superficial and stable with no complaints of pain or tenderness, and it does not cause any disabling effects or functional impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 30 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a compensable disability rating for left arm hyperpigmentation are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, DC 7805. 3. The criteria for a compensable disability rating for right arm hyperpigmentation are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, DC 7805. 4. The criteria for a compensable disability rating for upper back hyperpigmentation are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, DC 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1983 to October 1990. In March 2019, the Agency of Original Jurisdiction (AOJ) granted service connection for PTSD and assigned a 10 percent disability rating, from November 5, 2018 and granted service connection for hyperpigmentation of the left arm, right arm, and upper back, each rated as noncompensable (0 percent) from November 5, 2018. In July 2019 the disability rating for PTSD was increased to 30 percent effective April 2, 2019. The following month an earlier effective date of November 5, 2018 was assigned for the 30 percent disability rating based on clear and unmistakable error in the July 2019 rating decision. The Veteran then submitted a VA Form 20-0996 (Decision Review Request: Higher-Level Review. The AOJ confirmed and continued the current evaluations for all four issues in a November 2019 rating decision. In January 2020 the Veteran timely appealed this decision directly to the Board and requested "Evidence Submission" review. See VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD). Under this option, the Board is limited to review of the evidence in the record at the time of the rating on appeal in addition to evidence submitted up to 90 days after the NOD (VA Form 10182). 38 C.F.R. § 20.303. In other words, the Board will not consider evidence added to the record between the November 2019 rating action and January 2020 NOD, nor that evidence added following the expiration of 90 days from the January 2020 NOD. If evidence was added to the record during an ineligible period identified above, the Board has not considered that evidence. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. On a related note, the representative in January and March 2020 requested that VA obtain certain VA medical records. Although this request fell within the 90-day period from the date of the NOD, VA was under no duty to obtain the referenced records at that point with respect to this appeal. Increased Rating The Veteran is seeking a disability rating higher than 30 percent for his service-connected PTSD. Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon 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 applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD The Veteran's PTSD is rated as 30 percent disabling under DC 9411. Under the General Rating Formula for Mental Disorders, a 30 percent disability rating is warranted when there is 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: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for 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 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. Id. A 100 percent rating is warranted if there is 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. Id. When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F. 3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be due to those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d 112. The classification outlined in the portion of VA's Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130. The 30 percent evaluation is based, in part on findings from a February 2019 VA examination. The examiner noted that the Veteran's cocaine and alcohol use disorders were both in remission. The Veteran stated that his primary problem was adequately treating his depressive and PTSD symptoms and that the nightmares were most distressing. His reported symptoms also included depressed mood, anxiety, chronic sleep impairment, avoidance, and hypervigilance. Socially, the Veteran reported that he divorced after 20 years of marriage and has three adult children. He also had a history of homelessness and was currently staying with his daughter, who is supportive, and her two young children. He speaks to his mother about once a week and is close to a younger brother. The Veteran is currently employed but previously worked as an electrician for 40 years until he was "forced into retirement" due to his substance abuse disorder. He was last employed in 2017 and now spends most of his time at "home, reading, meditating or working on his relationship with God" and may occasionally watch an "inspirational movie." He attends church, bible study, and weekly AA meetings to maintain his sobriety. He denied any close contacts or friends. The Veteran is able to independently complete daily living activities, handles the finances, and is responsible to pay bills. During the evaluation the Veteran was adequately dressed and groomed with good eye contact. He was cooperative, engaging and fully oriented. His speech was regular in rate and rhythm. His mood was serious and affect constricted. His thought process was logical and goal directed and he denied hallucinations, paranoia, and delusions. The Veteran also denied suicidal homicidal thought, plan, or intent. His insight, judgment, and impulse control were all intact. After reviewing the Veteran's claims file, his self-reported medical history, and current symptoms, the examiner concluded the Veteran's PTSD was manifested by symptoms mild or transient which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. When examined by VA four months later in June 2019 there were no changes to the Veteran's social and occupational functioning since the previous evaluation in February. The Veteran reported continued sobriety and remained in the VA substance abuse program. There had been no increases in symptom endorsement or symptom severity in the last four months. Reported symptoms included depression, anxiety, fear, paranoia, nightmares, and low motivation. There was also little change in behavioral observations as the Veteran was appropriately dressed and groomed with good eye contact. He was pleasant and engaged but with constricted affect and somber demeanor. He was fully oriented with normal speech and language. The Veteran's thought processes were clear and linear, and he denied suicidal or homicidal ideation. After reviewing the Veteran's claims file, his self-reported medical history, and current symptoms, the examiner concluded the Veteran's PTSD continued to manifest mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The remaining record consists of VA outpatient treatment records dated from 2011 to 2019 which show monitoring of the Veteran's PTSD. Overall, the findings from pertinent records are not materially different from those reported on the 2019 VA examinations. Applying the Veteran's psychiatric symptomatology to the rating criteria noted above, the evidence does not support the assignment of a higher evaluation. Although he reported difficulties due to depression, anxiety, and chronic sleep impairment these symptoms are specifically enumerated in the schedular criteria for a 30 percent rating and do not keep the Veteran from functioning independently or have significant impact on his activities of daily living. Further, both VA examiners specifically found that the Veteran's PTSD symptoms were mild and/or controlled by continuous medication, consistent with the criteria for no more than a 10 percent rating. So, while the Board does not discount the effect of the Veteran's psychiatric disorder on his daily life, his symptoms are of a nature, frequency, duration, and severity best described as occupational and social impairment due to no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks -the level of impairment contemplated in the 30 percent rating. See Vazquez-Claudio supra. Accordingly, the evidence is persuasively against the claim for a 50 percent evaluation or higher and there is no reasonable doubt to be resolved. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). hyperpigmentation of the left arm, right arm, and upper back The Veteran seeks compensable disability ratings for hyperpigmentation of the left arm, right arm, and upper back, which are each rated 0 percent under DC 7805. The diagnostic criteria for disorders of the skin are found at 38 C.F.R. § 4.118. Under DC 7805 scars (including linear scars) and other effects of scars are evaluated under DCs 7800, 7801, 7802, and 7804. Any disabling effects of scars not considered in a rating provided under DCs 7800-04 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118. Where the schedule does not provide for a 0 percent rating, such an evaluation will be assigned when the requirements for a compensable evaluation have not been met. 38 C.F.R. § 4.31. The pertinent evidence in this case consists almost entirely of clinical findings from VA examination in February 2019. The examiner noted the Veteran did not have actual scars but rather areas of hyperpigmentation on the back and both forearms secondary to second degree burns (superficial partial thickness burn) from steam. The area of hyperpigmentation on the back measured approximately 20 x 15 centimeters (cm). The area on both posterior forearms measured approximately 10 x 7 cm on the right and 8 x 7 cm on the left. There was no indication that the areas were painful or unstable and there was no evidence of underlying tissue damage. There was also no disfigurement, limitation of function, or other disabling effects such as muscle or nerve damage. There were no other pertinent physical findings, complications, conditions, or signs/symptoms. The remaining evidence of record does not show that the Veteran has sought medical treatment for the hyperpigmentation areas on any regular basis. So, there are no subsequent findings or other comprehensive information to show symptoms that are more severe than those recorded on VA examination. Applying this evidence to the criteria listed above, the Board observes that entitlement to a compensable evaluation under DC 7805 is not warranted. As noted, the record shows the hyperpigmentation areas of the bilateral arms and upper back are not painful, tender, deep, unstable, or cause limitation of motion, and are otherwise asymptomatic. The Veteran has not argued otherwise. So, given the evidence as outlined above, the Board finds that the ratings remain noncompensable under DC 7805. The Board has also considered all other potentially applicable the other diagnostic codes under the rating criteria for assessing scars. However, there is no evidence of scars located on the head, face, or neck; burn scars with underlying soft tissue damage; scars covering an area of 144 square inches; painful scars; unstable scars with frequent loss of skin covering; or limitation of motion/function due to scars. Thus, diagnostic codes for rating these manifestations are not for application. See 38 C.F.R. § 4.118 DCs 7800, 7801, 7802, 7803, or 7804. As the evidence is persuasively against increased ratings, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch, 21 F.4th 776. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bryant 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.