MEDIAN NERVE PARALYSIS

JOHN J. CROWLEY · 2022 · Case ID: 22056446

DENIED

Summary

The veteran, who served in the United States Army/Army National Guard from January 1991 to September 2011 across multiple periods, appeals the denial of service connection for chronic fatigue syndrome (CFS), right upper extremity carpal tunnel syndrome (CTS), and a right foot disability manifested by pain and numbness. The veteran also sought an increased rating for her service-connected PTSD and endometriosis. For CFS, the veteran claimed it was secondary to PTSD and Hashimoto's thyroiditis, or due to asbestos exposure/undiagnosed illness. For CTS, the veteran cited a 2002 car accident and her service-connected wrist and neck conditions. For the foot disability, she linked pain to her service-connected ankle and knee conditions. The Board found no competent evidence of record supporting current diagnoses of CFS, CTS, or the right foot disability. VA examinations in May 2015 and November 2020 did not support a CFS diagnosis, with the 2015 examiner finding fatigue unrelated to Gulf service and the 2020 examiner noting a lack of supporting findings. The 2020 examiner also opined the veteran did not have CTS or a right foot disability, noting no in-service treatment or continuity of care for these conditions. The Board found the objective medical evidence, including VA examinations and post-service treatment notes, more probative than the veteran's lay statements, leading to denials for these claims. Regarding the increased rating for PTSD, the Board reviewed the veteran's symptoms and functional impact, concluding that the evidence did not support impairment consistent with a higher than 30 percent rating prior to May 21, 2020, or higher than 50 percent thereafter, denying the increase. For endometriosis, the veteran sought a higher than 30 percent rating, but the Board found no evidence of bowel or bladder involvement, which is required for higher ratings, denying the increase.

Rationale

No competent evidence of record showing Veteran has CTS.; VA examiners opined Veteran did not have CTS.; Lay statements outweighed by objective medical evidence.

Service Branch

ARMY/ARMY NATIONAL GUARD

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-38 852

Full Decision Text

Citation Nr: 22056446
Decision Date: 10/05/22 Archive Date: 10/05/22

DOCKET NO. 17-38 852
DATE: October 5, 2022

ORDER

Entitlement to service connection for chronic fatigue syndrome (CFS) is denied.

Entitlement to service connection for right upper extremity carpal tunnel syndrome (CTS) is denied.

Entitlement to service connection for a disability manifested by right foot numbness and pain is denied.

Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD) from March 25, 2014 to May 21, 2020, and a rating higher than 50 percent thereafter, is denied.

Entitlement to a rating higher than 30 percent for endometriosis is denied.

FINDINGS OF FACT

1. There is no competent evidence of record that shows the Veteran has CFS, right upper extremity CTS or an unspecified right foot disability manifested by pain and numbness.

2. From March 25, 2014 to May 21, 2020, the Veteran's PTSD resulted in impairment that most closely approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, and; from May 21, 2020, the Veteran's PTSD was not shown to be productive of occupational and social impairment with deficiencies in most areas.

3. Throughout the period on appeal, the Veteran's endometriosis was manifested by pelvic pain and heavy bleeding, it did not manifest by bowel or bladder symptoms.

CONCLUSIONS OF LAW

1. The criteria for service connection for CFS have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317.

2. The criteria for service connection for right upper extremity CTS have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317.

3. The criteria for service connection an unspecified right foot disability manifested by pain and numbness have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317.

4. The criteria for an initial rating higher than 30 percent for PTSD from March 25, 2014 to May 21, 2020, a rating higher than 50 thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411.

5. The criteria for a rating higher than 30 percent for endometriosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.116, Diagnostic Code 7629.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army/Army National Guard from January 1991 to November 1994, November 2002 to November 2003, September 2008 to September 2009, and May 2010 to September 2011.

In November 2020 the Board remanded the appeal for additional development. The Board finds there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998).

In a July 2022 brief, the Veteran's representative argued that additional remand was needed to obtain additional service records to verify the Veteran's service in the Persian Gulf region in support of the claim for service connection for CFS.

For reasons further explained below, the Board finds that additional remand to obtain this information would serve no useful purpose.

In a rating decision in November 2020 the RO increased the Veteran's disability rating for PTSD to 50 percent effective May 21, 2020. Because the increased ratings do not represent a grant of the maximum benefits allowable, the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993).

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). 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).

To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. §§ 3.307(a).

When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336.

Service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1) (VA has adopted an interim final rule extending this date to December 31, 2016). In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).
to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1) (VA has adopted an interim final rule extending this date to December 31, 2016). In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. Id.

A "qualifying chronic disability" for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b).

The Board notes that, effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multi symptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are 'medically unexplained chronic multi symptom illnesses' as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61,997 (Oct 7, 2010).

Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c).

Service connection may also be granted on a secondary basis for a condition that is not directly caused by the veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be prox
's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c).

Service connection may also be granted on a secondary basis for a condition that is not directly caused by the veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

1. Entitlement to service connection for CFS

2. Entitlement to service connection for right upper extremity CTS

3. Entitlement to service connection for a disability manifested by right foot numbness and pain

The Veteran seeks entitlement to service connection CFS, as well as CTS of the right upper extremity and a disability manifested by right foot numbness and pain.

Concerning the claimed CFS, the Veteran asserts that she developed CFS secondary to her service-connected PTSD and Hashimoto's thyroiditis. Alternatively, she claimed CFS due to asbestos exposure and/or an undiagnosed illness.

Pertaining to the claimed right CTS, the Veteran asserts that she was diagnosed with CTS in 2011. She asserts that the initial onset of the pain came from when she was in a car accident in 2002. She also contends that her service-connected wrist and neck conditions likely represent the etiology of her right upper extremity condition.

Finally with regards to the right foot disability, she claims that her right foot pain is related to her service-connected right knee and ankle disabilities. She explained that she experienced foot numbness, particularly to the area outside of the foot, due to a slight tilt and pressure on the bone from how the ankle was set.

The service treatment records contain no complaints, history or findings consistent with CFS, CTS or a right foot disorder, other than the service-connected right ankle disability. After service, treatment records noted complaints right wrist pain, as well as fatigue thought to be associated with hypothyroidism.

On VA examination in May 2015, the Veteran reported having served two months in Afghanistan 2010, during the Persian Gulf War. Reportedly, she developed chronic symptoms of fatigue with no clear etiology. She reported that her fatigue started in 2006 and had continued since that time. Her symptoms were productive of no functional impact. She denied any treatment for fatigue. Following a review of the evidence and an examination of the Veteran, the examiner opined that the Veteran did not have CFS. Her fatigue complaints were not secondary to CFS and were not related to hypothyroidism. She continued to report fatigue, despite normal thyroid function at that time. In addition, there was no evidence that her fatigue was at all related to the two months total that she served in Afghanistan. Her fatigue complaints originated in 2006, prior to her short Gulf service. Therefore, it was less likely than not that her complaints of fatigue were related to any environmental exposure experienced while in the Gulf.

On VA examination in November 2020, the Veteran asserted that she developed CFS due to asbestos exposure while working at an armory. Reportedly, she was seen at the ER where she was evaluated by neurologist. Following a review of the evidence and an examination of the Veteran, the examiner opined that the Veteran did not
report fatigue, despite normal thyroid function at that time. In addition, there was no evidence that her fatigue was at all related to the two months total that she served in Afghanistan. Her fatigue complaints originated in 2006, prior to her short Gulf service. Therefore, it was less likely than not that her complaints of fatigue were related to any environmental exposure experienced while in the Gulf.

On VA examination in November 2020, the Veteran asserted that she developed CFS due to asbestos exposure while working at an armory. Reportedly, she was seen at the ER where she was evaluated by neurologist. Following a review of the evidence and an examination of the Veteran, the examiner opined that the Veteran did not have CFS because there were no findings, signs or symptoms to support a diagnosis. The examiner noted that a neurological treatment note in 2019 failed to confirm a diagnosis of CFS. The examiner noted that the Veteran was quiescent pertaining to any medications or current treatment for symptom of fatigue.

On peripheral nerve examination in November 2020, the Veteran reported a history of bilateral intermittent and mild tingling of the fingers since 2006. Imaging studies showed no acute osseous abnormality. There was a prominent subchondral cyst within the radial aspect of the lunate. Following a review of the evidence and an examination of the Veteran, the examiner opined that the Veteran did not have CTS. Her symptoms were productive of no functional impact.

The Veteran was afforded a VA peripheral nerves examination in November 2020. She endorsed mild right lower extremity intermittent pain and numbness. Examination showed normal strength in all four extremities with no muscle atrophy. Deep tendon reflexes were normal in both arms and legs. Sensation was decreased in the right hand and fingers and left foot. March 2019 imaging studies of the wrist showed a cyst like lucency in the right lunate. No significant degenerative changes or bony erosions were otherwise evident bilaterally. Soft tissues were unremarkable. There was no documentation of carpal tunnel syndrome.

Most importantly, the examiner opined that the Veteran did not have CTS, a right foot disability or a peripheral nerve condition or peripheral neuropathy.

Concerning the right foot, the Veteran reported numbness and cramping in her foot associated with a motor vehicle accident in 2002. The Veteran complained of pain with walking or standing. She described ankle stiffness. She was not treating her right foot symptoms with any specific medication or therapeutic management for numbness in foot. Her reported symptoms did not affect her ability to perform occupational functioning or ordinary activities of daily life.

The examiner noted that the Veteran did not have a diagnosis of carpal tunnel syndrome during service, nor was there evidence in service of right foot numbness. There was also no medical documentation to prove or provide data that either condition was treated in service or once released that would show "bridging of the gap" in efforts of continuity of care for her discomfort. Due to these assessments, the examiner provided a negative opinion as to whether either of the claimed disorders were service related.

Review of the evidentiary record shows that there is no competent or probative evidence showing that the Veteran currently has CFS, CTS of the right upper extremity or an unspecified disability manifested by right foot numbness and pain. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim."); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. §§ 1131 requires existence of present disability for VA compensation purposes).

The Board notes the Veteran's statements regarding her in-service symptoms and reports of ongoing manifestations which she is competent to report. However, the Veteran's lay statements must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

To the extent the Veteran asserts that she has CFS, CTS of the right upper extremity and an unspecified disability manifested by right foot numbness and pain, associated with his service in Southwest Asia, the Board notes that the diagnoses of CFS, CTS or a right foot disability, requires clinical testing and medical expertise, and cannot simply be diagnosed by lay observation alone. The Board notes that the Veteran has not provided a medical opinion nor supported her contentions with any examination reports or findings that she has any of the claimed disabilities due to service. Compared to the VA examination reports of record, the VA examiners reviewed the claims file, examined the Veteran, and provided an etiological opinion with rationale. Here the Veteran has only provided bare assertions which are outweighed by the medical examinations of record, as well as the service and post service treatment notes. The Board finds that the objective medical evidence is more probative than the lay statements of record.

To the extent the Veteran complains of fatigue, pain and numbness, symptoms alone, the Board has considered whether the Veteran's claimed symptoms are of such severity that these would be considered a "disability" as used in 38 U.S.C. § 1110. While functional loss caused by pain is akin to functional loss caused by physical disability, in this case, the Veteran has not demonstrated evidence of a disability. Cf. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Simply stated, the best evidence in this case provides evidence against the existence of CFS, CTS or an unspecified disability manifested by right foot numbness and pain. As a result, more records from many years ago will not provide a basis to grant these claims

To the extent that VA treatment records noted a history of CFS and/or CTS, the Board is affording it little probative value because it appears to be based on a history provided by the Veteran and are not supported by any objective findings. A bare transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional is a VA or private physician. LeShore v. Brown, 8 Vet. App. 406 (1995).

In this regard, it is important for the Veteran to understand that the post-service treatment records provide particularly negative evidence against this case.

Moreover, as discussed above, the great majority of the wrist and right foot symptoms about which the Veteran has complained have been attributed to service connected right ankle and right wrist disorders. See 38 C.F.R. § 3.317(a)(1)(ii). As such, to the extent the associated symptoms are explained, the associated disabilities are not "undiagnosed" or "medically unexplained" for purposes of applying the Persian Gulf presumption. 38 C.F.R. § 3.317(a)(2)(i) and (ii).

It is essential for the Veteran to understand that the filing of claims in which the Board cannot find even the existence of the problem undermines her credibility with the Board.

As a diagnosis of CFS, CTS or an unspecified right foot disability manifested by pain and numbness, has not been shown at any time during the period on appeal, the Board concludes that the most probative evidence is against the claims, and service connection is denied; the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, 1 Vet. App. at 55-56.

Increased Rating

Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may
C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 (2009).

The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology.

4. Entitlement to an initial rating higher than 30 percent for PTSD prior to May 21, 2020, a rating higher than 50 thereafter

The Veteran contends that she is entitled to higher disability ratings than those currently assigned for PTSD.

The Veteran's service-connected PTSD is rated under Diagnostic Codes 9411 which utilize General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that Formula, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although found to be generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as a 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, General Rating Formula for Mental Disorders, Diagnostic Code 9411.

A 50 percent rating is assigned when there is 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; and 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); and the inability to establish and maintain effective relationships.

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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name.

As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. VazquezClaudio v. Shinseki, 713 F.3d 112, 11617 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those
ptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. VazquezClaudio v. Shinseki, 713 F.3d 112, 11617 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411.

Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a).

Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32].

GAF scores ranging between 71 and 80 reflect that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but is generally able to function "pretty well," and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes].

VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the Veteran's increased rating claim was originally certified to the Board after August 4, 2014, the DSM-5 is applicable to this case.

Effective August 4, 2014, VA also amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5. However, according to DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, the suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice.

VA treatment notes in 2014, showed the Veteran reported going to a friend's house for the holidays and stated that she had two close friends. She reported working at a shelter helping Veterans (the Board wishes to thank her for this service to Veterans).

On VA examination in May 2015
The amendments replace those references with references to the recently updated DSM-5. However, according to DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, the suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice.

On VA examination in May 2015, the Veteran endorsed daily moderate symptoms consistent with PTSD secondary to rape and assault in Afghanistan. She described avoidance of crowds and other stimuli, irritability, impaired sleep and nightmares. The Veteran denied any suicidal or homicidal ideation. The Veteran, who was single, reported difficultly trusting men due to her experiences in service and outside of the service. She was in an emotionally abusive relationship from 1997 to 2002. She was most recently in a relationship that lasted eight months in 2009. The Veteran reported having a close relationship with her family. She had friends and reported being sociable. Reportedly, her friends told her that she was more "edgy" and "irritable" since returning from Afghanistan. Somatic complaints had also contributed to periodic social isolation and impatience (this may, in fact, provide a basis why the Veteran filed the claims cited above).

The Veteran was active in social groups and had met some friends through these groups and classes. The Veteran enjoyed reading and photography. Reportedly, she had lost motivation to engage in exercise or more physical activities. She had attained a bachelor's degree in human communications and journalism. She related doing well in school. While she had been unemployed since 2011, she was attending college to further enhance her employment options. Past employment included working for the DEA from 1996 to 1997 in asset forfeiture, working for a resort, working as administrative assistant, and working for a computer company. She denied any occupational difficulties.

The Veteran was described as casually dressed and adequately groomed. She was pleasant, circumstantial and talkative, but redirectable. Psychomotor activity was unremarkable. Eye contact was appropriate. Speech was normal for rate, volume, and prosody. Mood was anxious and affect was congruent. Thought process was circumstantial, but easily redirectable. She denied psychotic symptoms including hallucinations or delusions. Cognitively, she was alert and oriented times four. Insight and judgment were fair. The examiner opined that the Veteran's PTSD was productive of occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.

On VA examination in May 2020, the Veteran reported sleep problems, impaired memory, nightmares, panic attacks, decreased energy and motivation, depression, crying spells, flashbacks, impaired concentration, depressed mood, anxiety and suspiciousness. The emxianer noted panic attacks that occurred weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and circumstantial, circumlocutory or stereotyped speech. The Veteran treated her symptoms with Wellbutrin. She denied any suicidal or homicidal thoughts at present. The Veteran lived alone with her service dog. She was employed as an intelligence analyst, her fifth job in three years. The examiner described the Veteran as alert and oriented to person, place and time. She was cooperative. The Veteran was tearful when describing her traumatic experience and was hyper verbal. The examiner opined that the Veteran's PTSD was productive of occupational and social impairment with reduced reliability and productivity.

VA treatment records throughout the appeal, noted complaints of depression and irritability. The Veteran consistently denied homicidal and suicidal ideation. Her hygiene and eye contact were appropriate. Speech was normal. Attention, memory and concentration were adequate. She was fully oriented. Insight and judgment were good.

Upon review of the record, the Board finds the Veteran's reported symptoms and cognitive functioning did not result in occupational and social impairment consistent with a higher 50 percent rating prior to May 21, 2020. The medical evidence noted no more than moderate symptoms. While the Veteran reported symptoms of depression, with some social impairment, difficulty in establishing and maintaining effective work and social relationships was not shown. In fact, the Veteran generally related having good relationships with her family
depression and irritability. The Veteran consistently denied homicidal and suicidal ideation. Her hygiene and eye contact were appropriate. Speech was normal. Attention, memory and concentration were adequate. She was fully oriented. Insight and judgment were good.

Upon review of the record, the Board finds the Veteran's reported symptoms and cognitive functioning did not result in occupational and social impairment consistent with a higher 50 percent rating prior to May 21, 2020. The medical evidence noted no more than moderate symptoms. While the Veteran reported symptoms of depression, with some social impairment, difficulty in establishing and maintaining effective work and social relationships was not shown. In fact, the Veteran generally related having good relationships with her family and friends. She denied any occupational difficulties. She regularly interacted with friends and participated in group and volunteer activities. The evidence shows that the Veteran was actively searching for employment, which she eventually obtained, and was attending school. As for the effect of the Veteran's symptoms on judgment, thinking, or mood prior to May 21, 2020, mental status examination was consistently within normal limits.

Additionally, the Board finds the Veteran's reported symptoms and cognitive functioning did not result in occupational and social impairment consistent with a higher 50 percent rating prior to May 21, 2020. Generally, the examiner and treating clinicians who treated the Veteran described her occupational and social impairment as no more than mild to moderate, consistent with the criteria for only a 30 percent rating. Specifically, the VA examiner in 2015 determined that the Veteran's psychiatric symptoms disorder productive of occupational and social impairment due to 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 Board concludes that the medical findings on examination and treatment notes prior to May 21, 2020, are of greater probative value than the Veteran's allegations regarding the severity of her psychiatric disability. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an initial rating in excess of 30 percent prior to May 21, 2020.

The Board finds that from May 21, 2020, the evidence of record does not support a disability rating higher than 50 percent. At no time during the period in question is the disability picture of the Veteran's PTSD one showing or suggesting occupational and social impairment with deficiencies in most areas (so as to warrant a 70 percent schedular rating).

While the VA examiner in May 2020 noted difficulty in establishing and maintaining effective work and social relationships, the evidence shows that the Veteran remained socially and occupationally engaged. Although she remained single and lived also, she had a history of being romantically involved, although she experienced trust issues. While the Veteran reported multiple jobs in a three year period, she remained employed as an intelligence analyst. Such level of functioning is inconsistent with a finding of occupational and social impairment with deficiencies in most areas and does not warrant a 70 percent schedular rating during this time period for the service-connected PTSD.

Consistent with this finding, the Board notes that the May 2020 examiner determined that Veteran's psychiatric symptoms caused occupational and social impairment due to 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.

This finding is consistent with increase in the disability evaluation during the appeal period. Simply stated, the condition became worse.

As for the effect of the Veteran's symptoms on judgment, thinking, or mood, from May 21, 2020, VA examination findings and treatment notes revealed mental status examination was consistently within normal limits. The Veteran's appearance, psychomotor activity, speech, attitude, affect, attention, orientation, thought process, thought content, judgment, intelligence, insight, hygiene, impulse control, and memory were essentially normal.

In this regard, it is important for the Veteran to understand that not all evidence in this case supports the current evaluation, let alone a higher evaluation.

Accordingly, the evidence failed to show suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, near continuous panic or depression affecting the ability to function independently, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, or any other symptoms reflective of a higher 70 percent rating. Therefore, the Board finds that the disability picture from May 21, 2020, presented by the Veteran's psychiatric disorder does not warrant a 70 percent rating.

In this regard, the Board notes that "in the context of a 70 percent rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Vazquez-C
suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, near continuous panic or depression affecting the ability to function independently, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, or any other symptoms reflective of a higher 70 percent rating. Therefore, the Board finds that the disability picture from May 21, 2020, presented by the Veteran's psychiatric disorder does not warrant a 70 percent rating.

Nothing above should be interpreted as a finding that Veteran is having no problems with her PTSD. The Veteran is clearly having problems with PTSD, and a 50% disability evaluation for PTSD will cause the Veteran many problems. The only question is the degree based on the best evidence, nothing more.

The Board concludes that the medical findings on examination and treatment notes from May 21, 2020, are of greater probative value than the Veteran's allegations regarding the severity of her psychiatric disability during the appellate period in question. Thus, the Board finds that the preponderance of the evidence is against granting a disability rating greater than 50 percent from May 21, 2020.

Accordingly, an initial rating higher than 30 percent for PTSD from March 25, 2014 to May 21, 2020, a rating higher than 50 percent thereafter, is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

5. Entitlement to a rating higher than 30 percent for endometriosis

The Veteran seeks a rating higher than 30 percent for endometriosis. In support of her claim, in a June 2016 statement she claimed that her endometriosis affected her bowel and bladder systems and caused problems with going to the bathroom. The Veteran also described uncontrolled pain in her pelvic region.

The rating for endometriosis is governed by 38 C.F.R. § 4.116, Diagnostic Code 7629, which provides for a 10 percent rating for endometriosis when there is pelvic pain or heavy or irregular bleeding requiring continuous treatment for control. An evaluation of 30 percent is warranted under Diagnostic Code 7629 with pelvic pain, or heavy or irregular bleeding not controlled by treatment. An evaluation of 50 percent is warranted under Diagnostic Code 7629 with lesions involving the bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. The Veteran is rated at 30 percent throughout the period on appeal; following a review of the evidence the Board finds that an increased rating is not warranted.

The Veteran underwent an examination in February 2015. The Veteran reported moderate pelvic pain and have heavy cramps with heavy menses. She took medication to treat her symptoms. The examiner noted a history of several laparoscopies with lysis of adhesions from endometriosis and laparotomy for removal of appendix with lysis. Symptoms of endometriosis were not controlled by continuous treatment. No associated bowel or bladder symptoms were noted.

On VA examination in November 2020, the examiner noted a diagnosis of endometriosis and pelvic adhesions with chronic pelvic pain, status post laparotomy. There was mild pain and irregular menstruation. No continuous treatment was required. There was no evidence of urinary incontinence/leakage or fistulae.

Treatment records throughout the appeal reflect findings consistent with those reported on VA examinations. No bowel or bladder impairment was noted and the Veteran consistently denied bladder frequency, dysuria, hematuria, or bladder or bowel incontinence.

Based on the evidence of record, the Board concludes that the most persuasive evidence weighs against the Veteran's claim for a disability rating higher than 30 percent for her service-connected endometriosis. In particular, the Board acknowledges the Veteran's complaints of abdominal pain and irregular/heavy bleeding. However, the evidence does not reflect lesions involving bowel or bladder confirmed by laparoscopy and bowel or bladder symptoms related to her endometriosis.

In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of her endometriosis. In this regard, the Veteran is competent to report on factual matters of which she had firsthand knowledge, e.g., abdominal pain and bleeding. The Veteran has provided lay evidence through written statements throughout the course of
the most persuasive evidence weighs against the Veteran's claim for a disability rating higher than 30 percent for her service-connected endometriosis. In particular, the Board acknowledges the Veteran's complaints of abdominal pain and irregular/heavy bleeding. However, the evidence does not reflect lesions involving bowel or bladder confirmed by laparoscopy and bowel or bladder symptoms related to her endometriosis.

In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of her endometriosis. In this regard, the Veteran is competent to report on factual matters of which she had firsthand knowledge, e.g., abdominal pain and bleeding. The Veteran has provided lay evidence through written statements throughout the course of her appeal with respect to the presence of pain and the severity of such during her VA examinations. She is competent to provide such statements. However, while in a June 2016 statement in support of her claim she reported bowel and bladder symptoms, in statements rendered in connection with treatment from 2014 to the present, she consistently denied any bowel or bladder symptoms.

Moreover, with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person. Therefore, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight.

Therefore, the Board finds that the evidence does not more nearly approximate the criteria for a rating of 50 percent or higher and a rating greater than 30 percent is denied at all times during the pendency of the appeal. Rather, the evidence persuasively weighs against the claim, and the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch, supra.

Finally, the Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The evidence of record, to include the treatment records and examination reports, shows that the Veteran remains employed, though having some problems. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted.

John J. Crowley

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Azizi, T.

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.

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