Citation Nr: 1316402	
Decision Date: 05/20/13    Archive Date: 05/29/13

DOCKET NO.  09-09 187	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure.

2.  Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD).

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU)


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Kordich, Senior Counsel


INTRODUCTION

The Veteran had active duty service from July 1967 to July 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2008, May 2011, and August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefits sought on appeal.

In October 2012, the Veteran testified before the undersigned at a Travel Board hearing held at the Muskogee, Oklahoma RO.  A transcript has been incorporated into the record.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicides.

2.  The Veteran has atherosclerotic coronary artery disease, a form of ischemic heart disease.

3.  The Veteran's PTSD is not manifested by occupational and social impairment with deficiencies in most areas, or by total occupational and social impairment.


CONCLUSIONS OF LAW

1.  The Veteran has atherosclerotic coronary artery disease that is presumed to have been incurred during active duty military service.  38 U.S.C.A. §§ 1110, 1116, 5107A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2.  The criteria for an evaluation greater than 50 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107  (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist 

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) include enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). 

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims(s); (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 

VA's notice requirement applies to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Dingess/Hartman also held that in rating cases, a claimant must be informed of the rating formula for all possible schedular ratings for an applicable rating code, and that VA must provide information regarding the effective date that may be assigned. 

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction.  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Sec'y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id. 

In this appeal, in July 2008 and June 2010 pre-rating letters, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for the increased rating disability for PTSD and service connection for ischemic heart disease, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA.  These letters also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman.  The July 2008 and May 2011 rating decisions reflect the initial adjudication of the claims after issuance of these letters.  Hence, the July 2008 and June 2010 letters, which meet the content of notice requirements described in Dingess/Hartman and Pelegrini, also meet the VCAA's timing of notice requirement.  

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal.  Pertinent medical evidence associated with the claims file consists of VA treatment records and the reports of December 2007, December 2010 (with an April 2011 addendum), and September 2011 VA/QTC examinations.  The Board has reviewed the reports of those examinations, and finds that they are adequate.  Also of record and considered in connection with the appeal is the transcript of the Veteran's January 2010 Board hearing. 

In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices from the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims herein decided.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of any of the matters herein decided, at this juncture.  See Mayfield, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Ischemic heart disease

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303.  As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology.  See Savage v. Gober, 10 Vet. App. 488 (1997).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Id. at 495-96.  The provisions of 38 C.F.R. § 3.303(b) only apply to diseases recognized by VA as "chronic".  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159. 

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975).  38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). 

If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, chronic lymphocytic leukemia (CLL), Type II diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue carcinomas (other than osteosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e). 

In addition, effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of disease associated with exposure to an herbicide agent (to include Agent Orange).  75 Fed. Reg. 53202-53216 (August 31, 2010).  "Ischemic heart disease" includes atherosclerotic cardiovascular disease.  See 38 C.F.R. § 3.309(e).

Thus, a presumption of service connection arises for a Vietnam veteran (presumed exposed to Agent Orange) or, alternatively, a veteran without Vietnam service with competent evidence of herbicide exposure, who develops one of the aforementioned conditions.  VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted.  See 59 Fed. Reg. 341 346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996).


Background and analysis

At the onset, the Board notes that the Veteran has verified service in the Republic of Vietnam.  As such, he is presumed to have been exposed to herbicides.

The Board has reviewed all the evidence in the Veteran's claims file, which includes his written contentions, service treatment records, personnel records, VA medical records (including those contained in Virtual VA), and VA examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 

The Veteran has been diagnosed with cardiac arrhythmia requiring a pacemaker and hypertensive heart disease.  He asserts that inservice exposure to herbicides, including Agent Orange, caused this disability.  In this regard, he also argues that his heart disorder is ischemic heart disease, which is presumptively related to his exposure to herbicides.

As previously noted, service connection for specific diseases, including ischemic heart disease, may be presumed if a Veteran was exposed during service to certain herbicides, including Agent Orange.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). 

Service treatment records are silent for diagnosis or complaints of heart problems. The Veteran's chest x-ray at entrance and separation was normal, and his examinations were also normal.  The Veteran marked "no" on his Reports of Medical History at entrance and separation as to whether he had any pain or pressure in his chest or palpitation or pounding heart. 

Historically, VA treatment records dated in July 2004 show a diagnosis of arteriosclerotic heart disease with complete left bundle branch block.  Results of a persantine scan showed a mild dilated left ventricle with ejection fraction of 48 percent and no inducible ischemia.  An echocardiogram was mentioned and showed a left ventricle ejection fraction of 75 percent.  A VA treatment report dated in July 2008 indicates that the Veteran was seen at the arrhythmia clinic for sinus bradycardia and the Veteran was recommended for pacemaker implantation.  His ejection fraction was normal and no evidence of ischemia was found on perfusion scan.  

A VA admission report indicates that the Veteran was admitted in October 2008 for the implantation of a cardiac pacemaker.  November 2008 treatment records show that the Veteran was doing well with no current symptoms after the pacemaker implantation.

June 2009 VA treatment records indicate that the Veteran was seen for complaints of chest pain.  An EKG showed atrial pacing.  X-ray of the chest showed normal heart size.  Left ventricular ejection fraction was 51 percent.  An Echo consult report dated in June 2010 indicated that the left atrium, right atrium, and right ventricle had increased in size.  The left ventricular ejection fraction was 45 percent.

A QTC examination dated in December 2010 diagnosed coronary artery disease with cardiac arrhythmia status post pacemaker implantation.  A clarification on the same examination stated that there were no significant abnormalities that warrant a cardiac diagnosis.  An echocardiogram revealed an ejection fraction of 65 percent and slight enlargement of the left atrium.

Due to the contradiction with the previous examination, an additional medical opinion was requested.  In April 2011, the claims file was reviewed and the VA physician noted that the Veteran had a pacemaker placed in October 2008.  An EKG in December 2010 revealed 1 degree AV block and left bundle branch.  An echocardiogram dated in June 2009 revealed a normal ejection fraction and a mildly impaired diastolic function.  A note dated in July 2004 stated that the Veteran had arteriosclerotic heart disease but the very same note stated that the persantine scan revealed no inducible ischemia.  It was also noted that the Veteran had hypertension and hyperlipidemia.  The VA physician opined that after review of the claims file, there was evidence of cardiac arrhythmia requiring a pacemaker and evidence of hypertensive heart disease, but the evidence for ischemic heart disease was insufficient.

At his October 2012 Travel Board hearing, the Veteran testified that he had a pacemaker and took blood pressure medication.  He indicated that he had an aneurysm in 1997 and after exercising and losing weight he visited his doctor who noticed a low heart rate; he eventually received a pacemaker.  The Veteran also noted that he was receiving Social Security benefits due to age and not disability.  

Under 38 C.F.R. § 3.309(e) ischemic heart disease means any atherosclerotic heart disease resulting in clinically significant ischemia or requiring coronary revascularization.  See 75 Fed. Reg. 53,205.  Ischemic heart disease is "an inadequate supply of blood and oxygen to a portion of the myocardium."  Id.  As indicated above, the new regulations specifically enumerate arthrosclerosis as a form of ischemic heart disease, subject to the presumptive provisions.  The Board finds the July 2004 VA treatment record showing a diagnosis of arteriosclerotic heart disease with complete left bundle branch block to sufficiently demonstrate current atherosclerosis. 

As the Veteran is presumed to have been exposed to herbicides in service and has developed a form of ischemic heart disease, diagnosed as atherosclerotic coronary artery disease, the Board finds that service connection is warranted on a presumptive basis.  See 38 C.F.R. §§ 3.102, 3.307, 3.309.  Although there appears some conflict in the evidence as to whether the Veteran indeed experiences ischemic disease, with resolution of reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted. 

PTSD

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule).  Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Multiple (staged) ratings may be assigned for different periods of time during the pendency of the appeal.  Fenderson v. West, 12 Vet. App. 119 (1999).  The analysis in this decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Where there is a question as to which of the two evaluations shall be applied, the higher evaluation 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.

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in 38 C.F.R. § 3.321 an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009).

The initial rating for the Veteran's PTSD has been assigned pursuant to Diagnostic Code 9411.  However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders.  See 38 C.F.R. § 4.130.

Under the formula, 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. 

A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 inability to establish and maintain effective relationships.

A rating of 100 percent is assignable 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. 

The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating."  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment.  Id. at 443. 

Psychiatric examinations frequently include the assignment of a Global Assessment of Functioning (GAF) score.  According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the global assessment of functioning is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the global assessment of functioning score and interpretations of the score are important considerations in rating a psychiatric disability.  See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995).  The global assessment of functioning score assigned in a case, however, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue.  Instead, the global assessment of functioning score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a). 

Background and analysis

At a December 2007 QTC examination, the Veteran reported experiencing intrusive thoughts, nightmares, and depression.  He indicated that the symptoms occurred constantly.  He explained that the effect his symptoms had upon his total daily functioning was more stress, the more fragile his mood.  He reported he had trouble sleeping, describing the problem as initial and middle insomnia.  

The examiner noted that the Veteran had not received psychotherapy for his mental condition within the past year, had not been admitted to a hospital for psychiatric reasons, and had not been required to make any emergency room visits for his psychiatric problem.

The examination showed the Veteran was oriented, with appropriate appearance and hygiene.  His behavior was appropriate but his affect and mood were abnormal with flattened affect, depressed mood, and impaired impulse control.  His communication was grossly impaired, but his speech was within normal limits.  Concentration was poor, with poor short term concentration.  Panic attacks were absent.  There were signs of suspiciousness, in that he reported paranoia at the time.  There were no delusions history present and at the time of the examination there was no delusions observed.  There was no hallucination history present and at the time of the examination there were no hallucinations observed.  Obsessional rituals were absent.  Thought processes were appropriate, and judgment was not impaired.  Abstract thinking was normal but memory was impaired to a mild degree (he reported forgetting names, directions, and recent events).  Suicidal ideation and homicidal ideation were absent.  There were behavioral, cognitive, social, affective or somatic symptoms attributed to PTSD and were described as intrusive thoughts, nightmares, easily startled, and depression.  The Veteran was assessed a GAF score of 50.  

The Veteran reported that he was the owner of a fast food restaurant and that he had worked there since 1994.  His relationship with his co-workers was good, and while performing this job he had not lost any time from work.

The examiner noted that the Veteran was mentally capable of managing benefit payments in his own best interest, but mentally, he occasionally experienced some interference in performing activities of daily living because of symptoms.  The examiner noted that the Veteran had difficulty establishing and maintaining effective work/school and social relationships because of his psychiatric symptoms, and had difficulty maintaining effective family role functioning.  The Veteran was noted to have intermittent inability to perform recreation or leisurely pursuits because of his psychiatric symptoms.  The examiner noted that the Veteran had no difficulty understanding commands, and appeared to pose no threat of persistent danger or injury to self or others.  The prognosis for the psychiatric condition was that more likely than not his chronic condition would not improve without medication management and therapy.

At his September 2011 VA/QTC examination the Veteran reported symptoms including hypervigilance, recurrent recollections, sleep disorder with nightmares, irritability, exaggerated startle response, and guilt.  The symptoms were reported as severe, constant, continuous and ongoing.  The Veteran indicated that the symptoms affected his total daily functioning which resulted in his having had difficulty coping with conflict, irritability, and being easily frustrated.  He reported hypervigilance in public.  He denied a history of violent behavior and did not report a history of suicide attempts.

The examiner noted that the Veteran was not receiving any treatment for his condition and had not received psychotherapy for his mental condition within the prior year.  He had not been hospitalized for psychiatric reasons and had not made any emergency room visits for his psychiatric problems.

The Veteran described his relationship with his mother, father, siblings, wife, and children as good.

The Veteran stated that he was not working and had not been working for 17 months.  He explained that he was employed as a restaurant owner for 17 years, and was becoming frustrated with customers and employees.  The Veteran indicated that his unemployment was due primarily to the effects of a mental condition because he "couldn't handle it anymore", due to his anxiety and irritability, especially in a public context.  

The examination showed the Veteran was oriented, with appropriate appearance and hygiene.  His behavior was appropriate and he maintained good eye contact during the examination.  His affect and mood showed a disturbance of motivation and mood.  The Veteran tended to be anxious with mildly restricted affect.  Communication and speech were within normal limits.  The Veteran showed impaired attention and/or focus, and was prone to distraction.  There was no indication of panic attacks.  There were signs of suspiciousness with the following example: he needs to watch persons carefully, especially Oriental persons.  There was no report of a history of delusions.  At the time of the examination there were not delusions observed.  There was no report of a history of hallucinations and none were observed during the examination.  Obsessive compulsive behavior was absent.  

Thought processes were appropriate and he was able to understand directions.  He did not have slowness of thought nor did he appear confused.  Judgment was not impaired and abstract thinking was normal.  Memory was impaired and the degree was noted as mild, in that he forgot names, directions, and recent events, and could forget short term details.  Suicidal and homicidal ideation was absent.  There were behavioral, cognitive, social, affective or somatic symptoms attributed to PTSD, which were described as hyperviligance, recurring recollections, sleep disorder with nightmares, irritability, and exaggerated startle response.  The Veteran was assessed a GAF score of 57.  

The examiner noted that the Veteran was prone to anxiety and irritability and could be easily distracted and forgetful, especially in public; he was anxious when in conflict and was easily frustrated when asked the functional impairment caused by the diagnoses and effect of that impairment on his ability to perform physical and sedentary activities of employment. 

It was further noted by the examiner that the Veteran occasionally had some interference in performing activities of daily living because of difficulty sleeping.  According to the examiner, the best description of the Veteran's current psychiatric impairment was psychiatric symptoms causing occupational and social impairment with reduced reliability and productivity.  The examiner noted that this statement was supported by the following symptoms: difficulty in understanding complex commands, impairment in short and long term memory, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships.  Currently he was having difficulty establishing and maintaining effective work/school relationships because he tended to isolate and could be irritable.  He was hypervigilant in public.  He was able to maintain effective family role functioning.  He had occasional interference with recreation or leisurely pursuits because he no longer hunted and could be isolative.  He had difficulty understanding complex commands because of memory and hearing issues.  Based upon the examination, the examiner noted the Veteran needed to seek follow-up treatment, and required evaluation for psychotherapy and psychotropic medication.  The Veteran did not appear to pose any threat of danger or injury to self or others and the prognosis for the psychiatric condition was noted as fair.

At his October 2012 Travel Board hearing, the Veteran testified that due to his PTSD he became irritated at work and just had to get up sometimes and leave.  The Veteran noted that he owned a restaurant and it bothered him when a particular Asian family came into his restaurant.  The Veteran reported isolation and confrontation.  He indicated that he would have a hard time working for someone else due to his irritability and anger outbursts.  The Veteran indicated that the VA wanted to set him up for appointments so he could receive treatment.

After a review of the record, the Board finds that an evaluation in excess of 50 percent for the service connected PTSD is not warranted.

In this regard, the Board notes that the Veteran does not evidence impairment from his PTSD that approximates the criteria for a 70 or 100 percent rating.  Although the Veteran reported symptoms of depression and disturbances of motivation and mood, he did not evidence any suicidal ideation, and the examination reports did not even remotely suggest near continuous depression affecting his ability to function.  Moreover, his memory problems were specifically described as mild, and clearly did not involve the type of memory loss contemplated by higher ratings.

The Veteran did report poor concentration as well as intrusive thoughts, but he was consistently oriented.  He evidenced no delusions or hallucinations, and while he reported some suspiciousness, his thought processes were considered appropriate.  

Although the Veteran was noted at his December 2007 examination as exhibiting impaired impulse control, his judgment was consistently described as normal.  The Board finds that any impaired impulse control is not to the extent contemplated by a 70 percent or higher rating.

The Veteran has been noted to experience some interference of his symptoms with his activities of daily living.  Given the Veteran's work history and the absence of any indication by the Veteran of significant impairment of his activities, the Board finds the interference is clearly not equivalent to the level contemplated by assignment of a higher rating for intermittent inability to perform activities of daily living.  

Although the Veteran does experience some difficulty with social interaction, his rather lengthy stewardship of a fast food restaurant clearly shows he does not experience the type of social impairment contemplated by higher ratings.  Moreover, his speech was consistently normal.

VA/QTC examinations noted the Veteran was orientated and that his appearance and hygiene were appropriate.  His behavior was appropriate, although his affect and mood were sometimes abnormal.  His speech was within normal limits.  The Veteran showed impaired attention and/or focus and was prone to distraction, but panic attacks were absent.  There was no evidence of delusions or hallucinations.  Obsessive compulsive behavior was absent, and thought processes were appropriate.  His judgment was not impaired and abstract thinking was normal.  Suicidal and homicidal ideation was absent.  

The Veteran's GAF scores ranged from 50 to 57, indicating mild to moderate to serious symptoms or mild to moderate to serious difficulty in social, occupational, or school functioning.  See DSM-IV at 44-47.  This level of severity and examples provided by the DSM-IV are consistent with the current rating assigned the PTSD, except for the GAF score of 50.  As to the GAF score of 50, while examples of impairment associated with such a score include suicidal ideation, severe obsessional rituals, or inability to keep a job, the examinations of record clearly show his actual impairment is not consistent with that GAF score.  The Board thus finds that the higher FAF scores are more representative of his true impairment.  Accordingly, the Board finds that his symptoms more closely approximate a 50 percent rating for PTSD during the entire appeal period. 

The evidence of record does not reflect symptomatology of PTSD that would meet the criteria for a rating in excess of 50 percent for any period of time during the pendency of this claim.  While the evidence of record demonstrates difficulty in establishing and maintaining effective work and social relationships, it does not reflect an inability to establish and maintain effective relationships.  Specifically, the Veteran has reported maintaining his marriage and having a good relationship with his children, parents, and siblings.  Additionally, there is no evidence of 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; spatial disorientation; or neglect of personal appearance and hygiene.  As such, a higher rating of 70 percent is not warranted.  Further, the evidence does not reflect even more serious symptoms, such as persistent delusions or hallucinations or persistent danger of hurting self or others, to warrant a rating of 100 percent. 

After considering the totality of the evidence of record, the Board finds that the criteria for an evaluation in excess of 50 percent have not been met.  The pertinent medical evidence collectively reflects that the Veteran's PTSD is primarily characterized by depression, trouble sleeping, memory problems, poor concentration, trouble socializing, and difficulty in adapting to stressful circumstances.  The Board finds that these symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity.  The only medical evidence to directly address the level of impairment supports this conclusion.

Overall, the evidence does not support an evaluation in excess of 50 percent for PTSD, and the claim for that benefit must be denied.  38 C.F.R. 
§§ 4.3, 4.7.

Extra-schedular Consideration

As indicated previously, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009). 

Here, as discussed above, the rating criteria for the service-connected PTSD reasonably describe the Veteran's disability level and symptomatology.  In fact, the rating criteria are specifically inclusive of and based upon occupational and social impairment.  Thus, as the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations are adequate, and no referral for extraschedular evaluations is required.  Id. 


ORDER

Service connection for ischemic heart disease is granted.

A rating in excess of 50 percent for PTSD is denied.



REMAND

The appellant's claim for a TDIU rating is inextricably intertwined with the claim for service connection for ischemic heart disease.  Given the grant of service connection for ischemic heart disease above, the TDIU issue must be returned for consideration by the agency of original jurisdiction after an initial rating for the service-connected ischemic heart disease disability has been assigned. 

Accordingly, the case is REMANDED for the following actions:

1.  Ensure that all notification and development action required by statutes, regulations, and any applicable legal precedents has been completed with respect to the claim remaining on appeal.

2.  Undertake all development deemed necessary to assign a rating for the service-connected ischemic heart disease.

3.  After completing any additional notification and/or development action deemed warranted, review the record again, including any newly acquired evidence, and re-adjudicate the TDIU issue on appeal. 

4.  If the benefit sought on appeal remains denied, the appellant and his representative must be provided a Supplemental Statement of the Case (SSOC).  The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal.  An appropriate period of time is to be allowed for response.  The case should then be returned to the Board for further appellate consideration, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs