POSTTRAUMATIC STRESS DISORDER (PTSD)

SONJA S. AN · 2022 · Case ID: A22016086

MIXED

Summary

The veteran, who served in the United States Marine Corps from June 1988 to January 1990, appeals the denial of service connection for several conditions and seeks an increased rating for PTSD. The Board granted a 70 percent disability rating for PTSD prior to February 12, 2020, finding that the veteran's symptoms met the criteria for significant occupational and social impairment, including anger issues and confusion about familiar names and places, as supported by a January 2019 private mental health evaluation. The Board also granted service connection for headaches, finding them to be secondary to the service-connected PTSD, based on a November 2019 private medical opinion that linked psychological stress to the headaches and concluded they predated a traumatic brain injury, thus attributing them to PTSD. The Board denied the veteran's requests to readjudicate claims for residuals of a foot injury (claimed as bilateral toe condition), Meniere's syndrome, bilateral hearing loss, tinnitus, and hypertensive vascular disease, as no new and relevant evidence was submitted since the prior March 2019 denial. The Board noted that evidence submitted after the March 2019 decision but before the February 2020 supplemental claim decision could not be considered due to procedural rules.

Rationale

PTSD symptoms met criteria for 70% rating prior to Feb 12, 2020; Private mental evaluation noted anger issues and confusion; Board found symptoms consistent with occupational and social impairment

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200707-104038

Full Decision Text

Citation Nr: A22016086
Decision Date: 08/16/22 Archive Date: 08/16/22

DOCKET NO. 200707-104038
DATE: August 16, 2022

ORDER

A 70 percent disability rating prior to February 12, 2020 for posttraumatic stress disorder (PTSD) is granted.

Service connection for headaches is granted.

The request to readjudicate the claim for service connection for residuals of foot injury, claimed as bilateral toe condition, is denied.

The request to readjudicate the claim for service connection for Meniere's syndrome (vertigo) is denied.

The request to readjudicate the claim for service connection for bilateral hearing loss is denied.

The request to readjudicate the claim for service connection for tinnitus is denied.

The request to readjudicate the claim for service connection hypertensive vascular disease (high blood pressure) is denied.

FINDINGS OF FACT

1. Prior to February 12, 2020, the severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximates occupational and social impairment, with deficiencies in most areas.

2. Resolving all reasonable doubt in the Veteran's favor, the Veteran's headaches are more likely than not related to his service connected PTSD.

3. There has been no new and relevant evidence received in connection with the claim for service connection for residuals of foot injury, claimed as bilateral toe condition, since a March 2019 rating decision denied the claim.

4. There has been no new and relevant evidence received in connection with the claim for service connection for Meniere's syndrome (vertigo) since a March 2019 rating decision denied the claim.

5. There has been no new and relevant evidence received in connection with the claim for service connection for bilateral hearing loss since a March 2019 rating decision denied the claim.

6. There has been no new and relevant evidence received in connection with the claim for service connection for tinnitus since a March 2019 rating decision denied the claim.

7. There has been no new and relevant evidence received in connection with the claim for service connection hypertensive vascular disease (high blood pressure) since a March 2019 rating decision denied the claim.

CONCLUSIONS OF LAW

1. The criteria for a 70 percent disability rating prior to February 12, 2020 for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.130, Diagnostic Code 9411.

2. The criteria for service connection for migraines have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria to readjudicate the claim for service connection for residuals of foot injury, claimed as bilateral toe condition, have not been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (d), 3.2501, 19.2(a)-(b).

4. The criteria to readjudicate the claim for service connection for Meniere's syndrome (vertigo) have not been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (d), 3.2501, 19.2(a)-(b).

5. The criteria to readjudicate the claim for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (d), 3.2501, 19.2(a)-(b).

6. The criteria to readjudicate the claim for service connection for tinnitus have not been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (d), 3.2501, 19.2(a)-(b).

7. The criteria to readjudicate the claim for service connection hypertensive vascular disease (high blood pressure) have not been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (d), 3.2501, 19.2(a)-(b).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from June 1988 to January 1990.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from June 1988 to January 1990.

In August 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), was signed into law. This law creates a new framework for veterans dissatisfied with VA's decision on their claim to seek review. The AMA automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. § 3.2400(a)(1).

In February 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the above issues most recently addressed in a March 2019 rating decision. In March 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received regarding the issues of service connection for headaches, residuals of foot injury, Meniere's syndrome, bilateral hearing loss, tinnitus, and hypertensive vascular disease. Additionally, regarding the issue of an increased rating or PTSD, in June 2020, the AOJ issues another supplemental claim decision that is also on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the respective decisions on appeal.

The Veteran timely appealed these decisions to the Board by requesting the Direct Review docket in the July 2022 Decision Review Requests: Board Appeal (Notice of Disagreement) (VA Form 10182). Therefore, the Board may only consider the evidence of record at the time of the March 2020 and June 2020 decisions on appeal respectively. 38 C.F.R. § 20.303.

Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of an increased rating for PTSD, service connection for migraines, residuals of a foot injury, Meniere's syndrome, bilateral hearing loss, tinnitus, and hypertensive vascular disease, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

PTSD

The Veteran is presently rated at 50 percent for PTSD prior to February 12, 2020 and 70 percent thereafter. The Veteran contends that he is entitled to an increased rating.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

PTSD is rated under 38 C.F.R. § 4.130, DC 9411. The criteria authorize the Veteran's currently assigned 50 percent rating for occupational and social impairment with reduced reliability and productivity due to such symptoms such as impaired judgment, impaired abstract thinking, and disturbances of motivation and mood. Id.

A 70 percent rating is assigned when PTSD causes 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.

The maximum 100 percent rating is warranted 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 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 evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126.

After a review of the record, the Board finds that prior to February 12, 2020 the Veteran's PTSD symptoms have manifested in the form of occupational and social impairment with deficiencies in most areas. A January 2019 private mental evaluation notes the Veteran reporting that he gets more upset than he used to over small problems, and that it is extremely hard for him to calm down after he gets upset. The Veteran further reported that his anger interferes with him paying attention to daily tasks causing him to get confused about names of familiar people or places.

Accordingly, the Board finds that prior to February 12, 2020 the Veteran's PTSD has manifested itself with occupational and social impairment with deficiencies in most areas. As such, the criteria for a 70 percent rating has been met for this period.

However, the next higher 100 percent rating is not warranted for any period on appeal. The Veteran has not been shown to be unable to perform activities of daily living or disoriented to time or place. On the contrary, a May 2020 VA examination specifically noted that the Veteran was alert and cooperative with the examination. Further, there are no delusions or hallucinations, or reported history of delusions or hallucinations. These findings were similar to that of a November 2019 private evaluation submitted by the Veteran in July 2020.

In summary, the evidence shows impaired impulse control, and other symptoms to support occupational and social impairment consistent with a 70 percent rating. Therefore, a 70 percent rating is warranted for the entire period on appeal.

Headaches

The Veteran contends that his diagnosed headache condition is caused by his PTSD. [As discussed above, the Veteran is service connected for PTSD].

VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156 (d). Relevant evidence is evidence that "tends to prove or disprove a matter at issue in a claim." 38 C.F.R. § 3.2501.

Evidence added to the record since a final March 2019 rating decision includes a November 2019 private opinion submitted in February 2020 regarding the Veteran's headaches. The Board finds that new and relevant evidence has been added to the record and that readjudication of the claim for service connection for headaches is warranted.

As discussed above, in February 2020, the Veteran submitted a private examination and opinion dated November 2019. The examiner ultimately concluded that the Veteran's headaches were the result of his PTSD. The examiner noted that the medical evidence supports a link between psychological stress and headaches. The examiner noted that the Veteran's headaches could be the result of the Veteran's diagnosed traumatic brain injury (TBI), however, went on to conclude that the Veteran's headaches pre
final March 2019 rating decision includes a November 2019 private opinion submitted in February 2020 regarding the Veteran's headaches. The Board finds that new and relevant evidence has been added to the record and that readjudication of the claim for service connection for headaches is warranted.

As discussed above, in February 2020, the Veteran submitted a private examination and opinion dated November 2019. The examiner ultimately concluded that the Veteran's headaches were the result of his PTSD. The examiner noted that the medical evidence supports a link between psychological stress and headaches. The examiner noted that the Veteran's headaches could be the result of the Veteran's diagnosed traumatic brain injury (TBI), however, went on to conclude that the Veteran's headaches predate the Veteran's TBI, therefore, the headaches were due to the Veteran's PTSD.

Accordingly, resolving any reasonable doubt in favor of the Veteran, the Board finds that a grant of service connection for headaches, as secondary to PTSD, is warranted. 38 C.F.R. § 3.310.

Residuals of Foot Injury, Meniere's Syndrome, Bilateral Hearing Loss, Tinnitus, and Hypertensive Vascular Disease

Upon review of the record, the Board finds, for the following reasons, that new and relevant evidence has not been received to warrant readjudication of the claims of service connection for residuals of foot injury, Meniere's syndrome, bilateral hearing loss, tinnitus, and hypertensive vascular disease.

The AOJ initially denied the Veteran's claims of service connection for right and left shoulder arthritis in a March 2019 rating decision which was issued under the legacy appeal system. The claims were denied on the basis that the evidence does not show the disabilities occurred in or were caused by service.

In February 2020, the Veteran submitted a VA Form 20-0995 Decision Review Request: Supplemental Claim; however, he did not submit any new evidence.

In a February 2020 rating decision, the RO determined that no new and relevant evidence was submitted.

As there is no new and relevant evidence since the March 2019 prior denial, the Board cannot readjudicate the claims of residuals of foot injury, Meniere's syndrome, bilateral hearing loss, tinnitus, and hypertensive vascular disease and the claims are denied.

SONJA S. AN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Jorge Barroso, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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