Citation Nr: A24029715 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 201221-133836 DATE: June 6, 2024 ORDER Entitlement to a disability rating higher than 70 percent for posttraumatic stress disorder (PTSD) with panic attacks, intermittent explosive disorder, and alcohol use disorder prior to June 18, 2023, is denied. Entitlement to a 10 percent disability rating between February 26, 2020 and March 11, 2020, for a hemangioma flank scar, residual of left flank condition status post AVM surgery, is granted. Entitlement to a higher disability rating for the left flank scar, evaluated as 10 percent disabling from May 13, 2019, 30 percent from January 4, 2020, and 10 percent again from February 26, 2020, is denied. FINDINGS OF FACT 1. The evidence demonstrated that psychiatric disability did not cause total social and occupational impairment prior to June 18, 2023. 2. There is an approximate balance of positive and negative evidence indicating that scar tissue on the left flank was painful between February 26, 2020 and March 11, 2020. 3. The evidence indicated between May 2019 and November 2020 that the Veteran's left flank scar tissue was painful and tender but not deep or adherent to underlying soft tissue, or unstable, and did not cover an area of the skin of 144 square inches (929 sq. cm.) or greater. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 70 percent for PTSD prior to June 18, 2023 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130. 2. The criteria for a 10 percent disability rating between February 26, 2020 and March 11, 2020 for scar tissue on the left flank are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118. 3. The criteria for a higher disability rating for left flank scar tissue, evaluated as 10 percent disabling from May 13, 2019, 30 percent from January 4, 2020, and 10 percent again from February 26, 2020, are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2010 to August 2016. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a November 2020 rating decision by a Regional Office (RO) of the U.S. Department of Veterans Affairs (VA). The Veteran appealed the decision by filing a December 2020 VA Form 10182, notice of disagreement (NOD). He elected direct review of the claims by the Board. In this decision, the Board may only consider evidence of record at the time of the November 2020 rating decision on appeal. 38 C.F.R. § 20.301. Claims for Higher Disability Ratings The Veteran claims that higher disability ratings are warranted for psychiatric disability and for scar tissue. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 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 evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. To deny a claim, the evidence must clearly weigh against the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). In rating disabilities, VA should not differentiate symptomatology attributed to nonservice-connected disability from symptomatology attributed to service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. "Staged" ratings are appropriate for any 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); Fenderson v. West, 12 Vet. App. 119 (1999). The assignment of a staged rating including a higher evaluation followed by a lower evaluation will not implicate rules regarding rating reductions. Procedural protection of ratings applies to prospective rating reductions. 38 C.F.R. §§ 3.105, 3.344; Singleton v. Shinseki, 23 Vet. App. 376 (2010). The applicable law and regulations concerning effective dates state in relevant part that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to the general rule is detailed under 38 C.F.R. § 3.400 (b)(2)(i), wherein an effective date may be assigned on the day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service. Another exception to the general rule under 38 C.F.R. § 3.400 is detailed under 38 C.F.R. § 3.400 (o)(2). This provision allows VA to assign an effective date for increased rating up to one year prior to the date of claim where medical evidence indicates an increase in disability during that time period. When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. The claims of entitlement to higher ratings will be addressed separately below. Psychiatric The Veteran has been service connected for psychiatric disability since August 2016. The RO assigned a 30 percent initial rating for the disability. On May 13, 2019, the Veteran filed a claim form the RO construed as a claim of entitlement to an increased rating for the disorder. In an October 2020 rating decision, the RO assigned a 70 percent rating for psychiatric disability (reframed as PTSD with panic attacks, intermittent explosive disorder, and alcohol use disorder), effective the date of claim. In the November 2020 rating decision on appeal, the RO continued the assigned 70 percent rating. Later in the appeal period, in a July 2023 rating decision, the RO assigned a 100 percent rating effective June 18, 2023. Nevertheless, the question before the Board is whether the only rating higher than 70 percent - 100 percent - was warranted at the time of the November 2020 rating decision. See 38 C.F.R. § 20.301. Acquired psychiatric disability is rated under 38 C.F.R. § 4.130. During the appeal period, the RO rated the Veteran's psychiatric disability under DC 9411, which addresses PTSD. See 38 C.F.R. § 4.130. This DC authorizes compensable ratings of 10, 30, 50, 70, and 100 percent. As the disorder has been rated as 70 percent disabling throughout the appeal period, the Board's inquiry will focus on whether the 100 percent rating has been warranted during the appeal period. Diagnostic Code 9411 and other DCs addressing psychiatric disabilities are addressed under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. A 100 percent rating is warranted for a mental disorder when 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; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130. The "such symptoms as" language under 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The relevant evidence consists of lay evidence, VA treatment records, and VA compensation examination reports dated in October 2019 and October 2020. This evidence does not support the assignment of a 100 percent rating during the period between the May 2019 claim for increased rating and the November 2020 rating decision on appeal. See 38 C.F.R. § 20.301. This evidence demonstrates that PTSD did not cause total occupational and social impairment during the relevant time period. See 38 C.F.R. § 4.130. The October 2019 VA report addressing psychiatric disability did not find total impairment. Rather, in finding that that the disability caused occasional impairment, the report supports the notion that a 30 percent rating was warranted under DC 9411. 38 C.F.R. § 4.130. The October 2020 VA report indicates more severe symptoms but not totally disabling symptoms. Rather, in finding that that the disability caused deficiencies in most areas of the Veteran's life, this report supports the notion that a 70 percent rating was warranted under DC 9411. 38 C.F.R. § 4.130. Indeed, the RO relied on this report to assign the 70 percent rating effective the date of claim in May 2019. The Board has considered whether anything in these reports could be construed as supporting the assignment of a 100 percent rating. But the reports are clear evidence that psychiatric disability was not then totally disabling. The reports note that the Veteran could be irritable, reckless, hypervigilant, with behavioral outbursts and verbal aggression, impaired impulse control, concentration problems, panic attacks, sleep disturbance, depression, anxiety, suspiciousness, mild memory loss, suicidal ideation, and obsessional rituals. The October 2020 report also detailed the effects of alcohol abuse. But the report also indicates that the Veteran continued to socialize with others and maintained his relationships with family members. The earlier report noted the Veteran lived with his girlfriend and her child, while the latter report noted that she was then his wife. The report notes the Veteran's involvement with his mother-in-law prior to her passing away. The report describes the Veteran as oriented, logical, coherent, alert, attentive, and cooperative. And the report indicates he had been capable of conducting activities of daily living, of grooming himself, and of managing financial affairs. Neither the VA treatment records nor the two VA reports indicate that the Veteran had manifested gross impairment in thought processes. The evidence indicates that he had been in control and cognitively sound. The evidence does not show that he had experienced persistent delusions or hallucinations during the relevant time period. The evidence has shown irritability and anger but not to such an extent that he had been in persistent danger of hurting himself or others. The evidence indicates that he had reported being short tempered with verbal outbursts. But the evidence did not indicate grossly inappropriate behavior. The evidence shows, moreover, that he had been able to perform activities of daily living to include personal hygiene requirements and was competent to handle financial affairs. The evidence has generally shown that he had intact memory, intact judgment, and the capacity for insight. Indeed, the VA treatment records dated prior to November 2020 show that the Veteran had coherently interacted with VA providers in a cooperative manner when being treated for PTSD and for his other service-connected and nonservice-connected disorders. For example, a February 2020 mental health treatment record notes that the Veteran reported getting married recently, had no major mental health concerns, had no major depressive or anxiety symptoms that affected his level of motivation, and had no interpersonal relationship problems. The record indicates that the Veteran was fully oriented, cooperative, and stable. And the record indicates that, although he generally felt discomfort in crowds, he was focused on starting a business. See 38 C.F.R. § 4.130. In short, despite the Veteran's symptoms, he did not exhibit during the relevant time period the type of psychiatric, emotional, or cognitive impairment reserved for a 100 percent rating. See 38 C.F.R. § 4.130, DC 9411. The record demonstrates that he has been impaired by PTSD. But the disorder did not cause total social and occupational impairment between May 2019 and November 2020. As such, the assignment of a 100 percent rating is unwarranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Scar In July 2016, the Veteran claimed entitlement to service connection for scar tissue on his trunk. In January 2017, the RO granted the claim and assigned a 0 percent rating effective August 25, 2016, the day following separation from active duty. 38 C.F.R. § 3.400 (b)(2)(i). In response to a NOD against the decision, the RO issued a statement of the case (SOC) in January 2019. The Veteran did not appeal the claim to the Board under the legacy appeals system. See 38 C.F.R. § 20.203 (2016). On May 13, 2019, the Veteran submitted a claims form addressing several claims but not a claim regarding scar tissue. Nevertheless, the RO construed the form as a claim of entitlement to an increased rating for scar tissue. In subsequent rating decisions dated between November 2019 and October 2020, the RO granted staged ratings - 10 percent from May 13, 2019, 30 percent from January 4, 2020, 0 percent from February 26, 2020, and 10 percent again from March 11, 2020. In the November 2020 rating decision on appeal, the RO continued the 10 percent rating granted effective March 11, 2020. The question before the Board is whether a higher rating was warranted at the time of the November 2020 rating decision. See 38 C.F.R. § 20.301. The RO has rated the scar tissue under DCs 7802 and 7804 of 38 C.F.R. § 4.118. The relevant rating criteria for scar tissue not on the head, face, or neck are the following. Under DC 7801 multiple compensable ratings are authorized for scars which are "deep" or associated with underlying soft tissue damage. A 10 percent rating is warranted under DC 7801 for scar tissue that is 6 square inches (39 sq. cm.) in size. A 30 percent rating is warranted for an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A 40 percent rating is warranted for an area or areas of 144 square inches (929 sq. cm.) or greater. Under DC 7802, a sole compensable 10 percent rating is authorized for scar tissue which is "superficial" or not associated with underlying soft tissue damage and covers 144 square inches (929 square centimeters) or greater. There is no DC 7803 under the relevant rating criteria. Under DC 7804, compensable ratings are authorized for unstable or painful scars. An unstable scar is defined as one where, for any reason, there is frequent loss of covering of skin over the scar. A 10 percent rating is warranted for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful. Lastly, under DC 7805, VA rates disabling effects of scar tissue under an appropriate DC. 38 C.F.R. § 4.118. The relevant evidence consists of lay evidence, VA treatment records, and VA compensation examination reports dated in October 2019, January 2020, February 2020, and September 2020. This evidence indicates that the Veteran underwent surgery in 2014 which resulted in operative scars, left lateral aspect of the flank or thorax due to resection of arteriovenous malformation. The evidence is unclear regarding the exact location of the scar with some reports indicating scar tissue on the side and other reports indicating scar tissue on the chest. Nevertheless, a photograph in the record shows the scar tissue at issue on the Veteran's left trunk, on the side area. The evidence also indicates that a 10 percent rating is warranted between February 26, 2020 and March 11, 2020, but that higher ratings are otherwise unwarranted. The October 2019 examiner described the scar as painful but superficial and stable without underlying tissue damage, and described a 14.5x.5 cm. scar along the lower rib area. The examiner indicated that the pain limited the Veteran from playing sports and engaging in activities of daily living, but did not provide information regarding any limitation of motion. The January 2020 examiner noted 17 separate scars - one long scar from surgery measuring 15x.4cm, 8 interrupted stitch scars above of the curvilinear scar (from 0.2 x 0.2 cm (6) to 1.2 x 0.3 cm (2)), and 8 interrupted stitch scars below the curvilinear scar (from 0.2 x 0.2 cm (6) to 1.2 x 0.3 cm (2)). The examiner summarized the scar tissue as affecting a total area of approximately 7.92 square cm. The examiner stated that all the scar tissue was painful but superficial and stable and without underlying soft tissue damage. The examiner noted functional limitation of difficulty bending sideways or reaching the left arm which could limit productivity and efficiency when such movements are required in the workplace. The February 2020 examiner found no painful scars, found the scars stable, and found the scars superficial with no underlying adherence. This examiner noted 10 scars of varying size with the largest measuring 18x.3cm. The examiner noted an approximate total area of 6.75 squared centimeters. Moreover, this examiner found no limited function caused by the scar and explained that the scar tissue was located on the Veteran's chest area rather than on his side or flank. The September 2020 examiner noted the Veteran's complaint of painful scar tissue which escalates when stretching and carrying heavy loads. The examiner also noted a "positional preference when sitting" because of pain escalation after sometime. The examiner noted no swelling, erythema, or signs of infection. This examiner identified one painful scar inside the incision area and noted the scar as tender upon palpation. The examiner found the scar stable and not adherent to underlying soft tissue. The examiner noted on the lateral posterior trunk scar tissue of 15x1.5cm, or an approximate total area of 22.5 squared cm. This examiner found that scar tissue limited function in that it interfered with stretching while carrying loads. The examiner noted no limitation of motion associated with the scar. Lastly, the Board has reviewed the VA treatment records. None provides detail regarding the scar at issue. The evidence shows that the Veteran has had painful scar tissue on his lower trunk area, but the tissue has been stable, superficial, nonadherent, and under 929 square centimeters in total area size. Further, although the Veteran described experiencing pain when stretching, there is no evidence in the claims file indicating compensable limitation of motion or function associated with the scar. See 38 C.F.R. § 4.71a, DC 5201. The Board has considered assigning separate ratings for separate painful scars, which is how the January 2020 examiner described the scar tissue. However, the Veteran's scar tissue is due to one operation and affects one zone of the body. The scar tissue rated here should be considered one scar. See 38 C.F.R. § 4.118, DC 7802 Note (2). Based on the foregoing evidence, an increased rating for scar tissue is unwarranted. The VA reports in this matter are probative because each indicates a review of the claims file, an examination and interview of the Veteran, and each cites evidence in the file to support their conclusions. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Their findings are more probative than lay evidence, moreover. Laypersons are competent to report observable symptoms such as pain and limited motion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, laypersons are not competent to determine matters such as severity of disability. (Continued on the next page) ? Questions regarding whether PTSD is totally disabling or scar tissue is deep or unstable are complex medical issues. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). For this reason, the probative VA reports outweigh the lay assertions here, particularly in light of the fact that the VA treatment records corroborate the examiners' findings, and indicate that higher ratings are not warranted. Indeed, the VA reports are more credible with regard to the question of disability severity. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). In sum, the evidence demonstrates that higher ratings are unwarranted here. As such, the reasonable doubt doctrine does not apply. The claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee 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.