Citation Nr: 1324024 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-00 348A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hypertension, as due to herbicide exposure or as secondary to the service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an initial disability rating in excess of 30 percent for PTSD. 3. Whether new and material evidence has been presented to reopen a claim for service connection for migraine headaches. 4. Whether new and material evidence has been presented to reopen a claim for service connection for bleeding ulcers. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The National Veterans Disability Advocates ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to December 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, that granted service connection for PTSD and assigned an initial rating of 30 percent, beginning on December 31, 2007, the date of service connection. Also on appeal is a December 2008 rating decision by the RO in St. Louis, Missouri, that denied entitlement to service connection for hypertension. Jurisdiction over the case was subsequently returned to the RO in Chicago, Illinois. In the Veteran's formal appeal received in December 2009, he requested a hearing at the RO; however, he waived his right to a hearing in September 2012. Additional evidence was submitted directly to the Board after the claims were certified, to include VA medical center (VAMC) records, which was accompanied by a waiver of consideration by the RO and, therefore, can be considered in this decision. See 38 C.F.R. § 20.1304. The Board notes that the Veteran also submitted an April 2012 private PTSD examination after certification to the Board, without waiver of RO consideration; however, the Board finds that the information contained in the report is essentially duplicative of the evidence of record and can be considered in this decision without remand to the RO. In deciding these claims on appeal, the Board has reviewed the contents of the Veteran's electronic ("Virtual VA") file, in addition to the evidence in his physical claims file to ensure a total review of the evidence. In an October 2011 rating decision, the RO denied reopening previously denied claims of service connection for migraine headaches and service connection for bleeding ulcers. In March 2012, the Veteran filed a notice of disagreement regarding that decision. A statement of the case was not issued; therefore, the Board is required to remand these issues. See Manlicon v. West, 12 Vet. App. 238 (1999). Additionally, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (the Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. Here, the issue of entitlement to a TDIU has been specifically raised by the Veteran's representative. In light of the Court's holding in Rice, the Board considers the claim of entitlement to a TDIU as an issue on appeal. The issues of whether new and material evidence has been received to reopen a claim for service connection for migraine headaches, whether new and material evidence has been received to reopen a claim for service connection for bleeding ulcers, entitlement to an evaluation in excess of 70 percent for PTSD, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran had service in Vietnam and his exposure to herbicides is presumed. 2. Hypertension is not recognized by VA as a disorder which is causally related to exposure to herbicide agents used in Vietnam. 3. Hypertension was not demonstrated during service, or for many years thereafter; it is not shown to be related to any incident of active service, to include herbicide exposure; and it is not shown to have been either caused or aggravated by the service-connected PTSD. 4. The occupational and social impairment from the service-connected PTSD is shown to more nearly approximate a disability picture manifested by deficiencies in most areas and an inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred, or as due to or having been aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for the assignment of an evaluation of 70 percent for the service-connected PTSD are met for the period of the appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130 including Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects the Veteran was provided VCAA notice by a letters mailed in February and October 2008, before the initial adjudication of the claims. The record also reflects that service treatment records and pertinent post-service medical records have been obtained, and the Veteran has been afforded appropriate VA examinations in regards to the claim for an increased rating for PTSD. The Board notes that the Veteran failed to report for an examination scheduled for May 2011 in connection with his claim for service connection for hypertension, despite being advised of the examination. He has not explained why he failed to appear for the examination or requested that the examination be rescheduled. The Court has held that VA's duty to assist a veteran in developing the facts and evidence pertinent to a veteran's claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). The Veteran has not identified any additional, outstanding evidence to substantiate his claims. The Board also is unaware of any such outstanding evidence. Therefore, the Board also is satisfied that the originating agency has complied with the duty to assist requirements of VCAA and the pertinent implementing regulation. Claim - Service Connection Hypertension The Veteran seeks service connection for hypertension, as due to herbicide exposure or as secondary to the service-connected PTSD. Service connection may be awarded for a current disability arising from a 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, 3.304 (2012). Service connection may also be awarded for certain disabilities, such as hypertension, which manifest to a compensable degree within a year of service separation. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Finally, service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. The Board also notes that the Veteran had service in Vietnam, resulting in a presumption of exposure to herbicides. See 38 C.F.R. § 3.307(a) (6). If a veteran was exposed to a herbicide agent during service, certain enumerated diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was 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. However, hypertension is not among the disorders for which service connection is presumed. The availability of presumptive service connection for a disability based on exposure to herbicides does not, however, preclude a claimant from establishing service connection for a non-enumerated disease with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As noted above, the RO scheduled a VA examination in connection with the claim for service connection for hypertension in May 2011. However, the Veteran failed to appear for the examination. The evidence available to evaluate the Veteran's claim has been significantly affected by his failure to undergo VA examination. In accordance with 38 C.F.R. § 3.655 (2012), therefore, the Board has decided the claim based on the evidence currently of record. First, considering entitlement to service connection for hypertension on a direct basis, the Board does not find any evidence of onset of hypertension during any period of active duty, or within a year thereafter. Review of the Veteran's service treatment records indicates blood pressure readings within normal limits during service, with no indications of either abnormal blood pressure readings or any diagnoses of or treatment for hypertension. On his initial service connection claim, the Veteran listed onset of his hypertension in approximately 2007, many years after his final period of active service. The evidence of record does not suggest onset of his hypertension either during any period of active duty or within a year thereafter. Therefore, service connection for hypertension on a direct basis must be denied. Next, the Board must consider the Veteran's assertion that his hypertension was the result of herbicide exposure. As noted above, the Veteran has verified service in Vietnam, and thus his exposure to herbicides is confirmed. While hypertension is not among the disorders for which service connection is presumed, the Board must nevertheless consider whether service connection is warranted based on evidence of direct causation as a result of herbicide exposure. Id. The Board notes that in July 2009, the National Academy of Sciences (NAS) issued "Veterans and Agent Orange: Update 2008" (Update 2008). The Secretary, based upon Update 2008 and prior NAS reports, has specifically concluded that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for hypertension. See 75 Fed. Reg. 32540 (June 8, 2010). Furthermore, while ischemic heart disease (coronary artery disease) is presumptively linked to herbicide exposure, hypertension is not a disease within the meaning of "ischemic heart disease" as it is not a disease of the heart. VA Training Letter 10-04, Training Guide, p. 14. Hence the herbicide presumption is not applicable. The record is otherwise devoid of any competent evidence indicating either causation or aggravation of the Veteran's hypertension by his confirmed herbicide exposure. In the absence of any such competent evidence, the Board finds service connection for hypertension as secondary to herbicide exposure is not warranted. Finally, the Board must consider entitlement to service connection for hypertension as secondary to a service-connected disability or disabilities. At present, the Veteran has been granted service connection for PTSD. The record is without competent evidence even suggesting the Veteran's service-connected PTSD has either caused or aggravated his hypertension. In the absence of any competent evidence suggesting a service-connected disability either caused or aggravated the Veteran's hypertension, service connection for hypertension on a secondary basis must be denied. In support of his claim, the Veteran has offered his own assertions suggesting a nexus between his hypertension and either his herbicide exposure during service, or his service-connected PTSD. The Veteran also submitted a statement from his sister in June 2011, attesting to him suffering hypertension since his return from Vietnam. However, while a lay person is competent to report what comes to him or her through the senses, the Veteran and his sister lack the medical training and expertise to provide a complex medical opinion as to the etiology of hypertension. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Disorders such as hypertension are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology. As such, the statements therein cannot be accepted as competent evidence as to the etiology of his hypertension. In conclusion, the preponderance of the evidence is against the award of service connection for hypertension on any basis. The evidence does not indicate such a disorder was incurred during service or within a year thereafter. Additionally, the evidence does not indicate that the Veteran's hypertension is either due to or aggravated by his herbicide exposure during service, or a current service-connected PTSD. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Claim - Increased Rating PTSD Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides that a 50 percent disability rating is warranted for PTSD 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 effective work and social relationships. A 70 percent disability rating is warranted for PTSD when there is 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 inability to establish and maintain effective relationships. The maximum schedular rating of 100 percent is warranted for PTSD when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Service connection for PTSD was granted in September 2008. At that time, the Veteran was assigned a 30 percent rating, effective on December 31, 2007. The Veteran contends that a higher disability rating is warranted for the service-connected PTSD. Specifically, in a September 2012 brief, the Veteran requested a 70 percent rating for his PTSD. After carefully reviewing the evidence of record, the Board concludes that the level of overall impairment due to the service-connected PTSD more closely resembles the criteria for at least a 70 percent disability in this case. The record contains a statement from the Veteran in February 2008, attesting to his PTSD symptoms to include violent outbursts, arrests for arguments that led to a shooting and physical combat, depression, and relationship problems. The record is replete with VAMC records showing PTSD symptoms to include sleep disturbances, forgetting to take his medication, irritability, isolation/avoidance, anger issues, nightmares/flashbacks of Vietnam with depressed mood at times, limited insight, impulsive judgment, some constriction in affect, and fair to good hygiene. The Global Assessment of Functioning (GAF) scores over time were noted as ranging from 50 to 53 in connection with his treatment. The record also contains Vet Center records, showing that the Veteran attended individual therapy and had symptoms of poor impulse control, isolation, and depression. A statement from C.M., M.S.W., in March 2008 noted that the Veteran experienced sleeping problems; recurrent and intrusive recollections of events; difficulties with stress or disturbances which caused clinically significant impairment in social, family, and other important areas of functioning; difficulty with interpersonal and social interactions; intrusive thoughts of war; withdrawn behavior and other stress-related symptoms. C.M. noted a diagnosis of PTSD with a GAF score of 33. The Veteran was afforded a VA examination in July 2008 in which he reported PTSD symptoms to include fighting at work, relationship problems due to his temper, losing interest in activities and becoming socially withdrawn, recurrent or distressing/intrusive memories, avoidance, feelings of detachment or estrangement, restricted range of affect, sleep disturbances, irritability or outbursts, hypervigilance, and exaggerated startle response. Mental status examination showed disheveled appearance, alert consciousness, oriented with normal speech, normal thought processes, visual and auditory hallucinations, dysphoric mood, unimpaired memory, normal concentration and attention, and no current suicidal ideation. The examiner diagnosed PTSD with a GAF score of 48. A.B., Jr., VA staff psychiatrist, submitted a statement in March 2009 that he supported the Veteran's claim for an increase in service connection for PTSD. The Veteran was afforded a VA examination in January 2011 in which he reported PTSD symptoms to include physical violence at work, temper and anger, nightmares and flashbacks, avoidance, being constantly on guard, minimal social relationships and activities, and passive suicidal ideation but no action. He also reported being incarcerated after shooting a man during an argument and retiring because he indicated experiencing strokes on four different occasions since 2006. The examiner noted that psychiatric symptoms were moderately severe, frequent and chronic. Mental status examination showed thought process logical and sequential, no psychotic thought disorganization, judgment and insight were fair, there were no delusions or hallucinations, ability to maintain minimal hygiene was adequate, orientation was good, memory was adequate, speech was normal, there were no panic attacks, and affect was constricted. The diagnosis was PTSD with a GAF score of 50. A private examination in April 2012 showed, in pertinent part, a diagnosis of PTSD with a GAF score of 50. The Veteran reported symptoms to include obsessional rituals which interfere with routine activities (getting up hourly at night to check his home); persistent irrational fears; depression affecting his ability to function independently, appropriately, and effectively; neglect of personal appearance and hygiene (sometimes); difficulty in adapting to stressful circumstances; unprovoked hostility and irritability; and suicidal ideation. The private examiner opined that the Veteran was not capable of performing full-time competitive work with his psychological symptoms and limitations. The Board finds that the evidence satisfactorily establishes that the service-connected PTSD has been productive of a disability picture that nearly approaches a level of social and industrial inadaptability manifested by deficiencies in most areas, as required for a 70 percent rating. The Board acknowledges that the medical evidence of record does not reflect that the Veteran experiences all of the symptoms associated with the 70 percent schedular rating. Yet the record does show that he has occupational and social impairment with deficiencies in most areas; suicidal ideation; impaired impulse/anger control; some neglect of personal appearance and hygiene and depression. He does not have impaired speech; near-continuous panic attacks; or spatial disorientation. However, the Court has held that the symptoms enumerated under the schedule for rating 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board also finds that, throughout the period of the appeal, the service-connected PTSD is shown to be productive of a disability picture manifested by a serious disruption approaching an inability establish and maintain effective relationships as required by the criteria for a 70 percent rating. In determining that the Veteran's PTSD warrants a 70 percent disability rating, the Board has considered the GAF scores assigned for the Veteran. GAF scores are based on 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. A GAF score of 31-40 is indicated when there is, "Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood." GAF 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). Scores ranging from 51 to 60 reflect 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). In this case some of GAF scores assigned for PTSD are consistent with the Veteran's symptoms as detailed by the various examiners and treating providers. However, the GAF scores do not correlate to any specific rating. The Board has found the examination findings and the actual assessments of the Veteran's occupational and social functioning to be more probative than the GAF scores. Accordingly, on this record, the Board concludes that the Veteran is entitled to an evaluation of 70 percent for the period of the appeal. As to whether an evaluation in excess of 70 may be warranted, the Board finds that the matter is not yet ripe for review, and that the issue is being remanded for further development below. ORDER Entitlement to service connection for hypertension is denied. A 70 percent disability rating for PTSD for the period of the appeal is granted, subject to the regulations controlling the payment of monetary benefits. REMAND As explained in the Introduction, the Veteran filed a notice of disagreement to a rating decision in October 2011 that denied reopening his claims for service connection for migraine headaches and service connection for bleeding ulcers. A statement of the case has not been not issued; therefore, the Board is required to remand these issues. Also, the Veteran asserts that he is unemployable. Therefore, in accordance with Rice, the issue of entitlement to a TDIU must be remanded for appropriate notice and development. In addition, the Board finds that such claim is inextricably intertwined with the issue of entitlement to an evaluation in excess of 70 percent for PTSD. Accordingly, this case is remanded for the following actions: 1. Provide the Veteran and his representative with all required notice in response to the claim for a TDIU. 2. Schedule the Veteran for a VA psychiatric examination to ascertain the current severity of the Veteran's PTSD. The claims file should be provided to the appropriate examiner for review and the examiner should note that it has been reviewed. The examiner should perform any tests or studies deemed necessary for an accurate assessment. A complete rationale for any opinions expressed should be provided. After reviewing the record, the VA examiner should provide an opinion as to whether the Veteran's service-connected PTSD is of such nature as to preclude employment consistent with his education and occupational experience. In providing an opinion, the examiner should discuss what functional limitations the Veteran experiences as a result of his PTSD and what impact, if any, these have on his occupational functioning. Consideration should not be given to the Veteran's age, and any discussion and/or opinion(s) should be limited to the impact of his Veteran's service-connected PTSD on the ability to obtain or maintain employment. 3. After undertaking any development deemed necessary, issue a statement of the case referable to the following issues: whether new and material evidence has been presented to reopen a claim for service connection for migraine headaches and whether new and material evidence has been presented to reopen a claim for service connection for bleeding ulcers. Only if the Veteran perfects an appeal should the claims be certified to the Board and after any necessary development has been completed. 4. Then, the RO should adjudicate the Veteran's claim for a TDIU based on a de novo review of the record. If the benefit sought on appeal are not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued, and the Veteran and his representative should be afforded the requisite opportunity to respond before the claims folders are returned to the Board for further appellate action, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs