Citation Nr: 1331707 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 12-02 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as acid reflux, to include as due to posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, to include as due to posttraumatic stress disorder. 3. Entitlement to service connection for sleep apnea, to include as due to posttraumatic stress disorder. 4. Entitlement to service connection for gouty arthritis causing joint pain involving hands/fingers, elbows, hips, ankle, and feet. 5. Entitlement to service connection for left and right knee strains. 6. Entitlement to service connection for degenerative lumbar spine, with laminectomy. 7. Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD), currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to October 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2010, December 2010, and July 2011 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in August 2013. A transcript of the hearing is associated with the Veteran's claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for GERD, hypertension, sleep apnea, gouty arthritis causing joint pain involving hands/fingers, elbows, hips, ankle, and feet, left and right knee strains, and degenerative lumbar spine, with laminectomy, all issues to include as due to posttraumatic stress disorder 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. FINDING OF FACT The Veteran's PTSD is not manifested by 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. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 30 percent for the Veteran's service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased rating claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Here, the Veteran was sent a letter in March 2011 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as a post-service VA examination report. Moreover, his statements in support of the claim are of record, including testimony provided at an August 2013 before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Further regarding the duty to assist, the United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). The Board notes that, at the August 2013 hearing, the presiding VLJ made certain the Veteran was aware of the issue before the Board and asked questions designed to elicit relevant testimony as to the severity of the disability at issue. In light of these factors, the Board finds the duties imposed by Bryant were met. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet.App. 119 (1999). The Veteran's service-connected PTSD has been rated by the RO under the provisions of Diagnostic Code 9411. Under this regulatory provision: a noncompensable rating is warranted when a mental condition has been diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. a 10 percent rating is warranted when the Veteran experiences 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 continuous medication. a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). a 50 percent is warranted if the Veteran experiences 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 is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. a 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 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. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran underwent a VA psychiatric examination in June 2011. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported that he met with a mental health professional of some sort for two sessions in the 1970s at Kadena Air Force Base. He reported that he does not currently receive mental health treatment. He was a combat Veteran who witnessed people being seriously injured or killed, experienced close calls on his own safety, participated in the recovery of bodies and body parts, and was in camp that received mortar and rocket attacks. He experienced intense fear, intense feeling of sadness when required to collect bodies, and feelings of vulnerability when reflecting on combat missions. The Veteran has never been married or had children. He stated that his Army career kept him so busy that he did not have time to focus on a long term romantic relationship. He also stated that he developed a fear of commitment while in the military. He stated that thereafter, he preferred to be alone. However, he endorsed the ability to be socially appropriate when he is required to be in a social or occupational setting. He stated that he went to great lengths to protect and guide the soldiers who were under his command, but that emotionally he did not care what happened to them. He stated that he can appear social and happy in one context, and then detached and aloof in another. He denied a history of interpersonal violence. He stated that he learned to isolate himself when he feels irritable. He reported that he worked for the Army after retiring from active duty. He stopped working for the Army in 2004. He spends time driving around and visiting other places. He enjoys gardening. He denied experiencing discouragement or discontentment about his lifestyle. He had no issues associated with alcohol or other substance use, no suicide attempts, and no history of violence. Upon examination, the Veteran was clean and appropriately dressed. His psychomotor activity was unremarkable. His speech was clear and coherent. He was cooperative and attentive. He reported that he has a tendency to smile and act happy even when he feels depressed or anxious. The examiner noted that the Veteran's mood was anxious, but that he was oriented to person, place, and time. His thought process was unremarkable. His thought content included suicidal ideation (without current intent or plan), paranoid ideation, non-combat related nightmares, intrusive memories about combat, and hyper-awareness of his surroundings. He understood the outcomes of his behavior. He was of above average intelligence and understood that he has a problem. He did not suffer from any delusions or hallucinations. He did not have any inappropriate behaviors, panic attacks, or homicidal thoughts. He did have an obsessive/ritualistic behavior in the form of mildly compulsive patrolling. He had good impulse control. The examiner stated that the Veteran had a slight problem with activities of daily living, and that his memory was mildly impaired. He endorsed feelings of intense fear, helplessness, and sadness. The Veteran's PTSD symptoms included intrusive and distressing memories about combat, intense feelings of sadness when reminded of combat, avoidance of conversations about combat, social detachment (prefers to be alone, did not get married or have children), restricted range of affect, emotional numbing (does not care what happens to others around him), desensitization (he stated that he is never startled), difficulty initiating and maintaining sleep, bouts of irritability, and hypervigilance (patrols his home and is hyper-aware of what is going on around him). The examiner found that the Veteran knew the amounts of his monthly bills and was able to personally handle money and manage financial affairs. The Veteran retired in 2004 due to age and duration of work. The examiner assigned a Global Assessment of Functioning (GAF) score of 70. A GAF of 61-70 indicates 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 generally functioning pretty well with some meaningful interpersonal relationships. A GAF of 51-60 indicates 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). A GAF of 41-50 indicates 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). A GAF of 31-40 indicates 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 (e.g. depressed man avoids friends, neglects family, and is unable to work). A GAF of 21-30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends.) American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) (Fourth Edition); see 38 C.F.R. § 4.130 (2012). The examiner found that there was occasional decrease in work efficiency and there were intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but that the Veteran had generally satisfactory functioning. She stated that there was no reduced reliability and productivity due to PTSD symptoms. At the Veteran's August 2013 Board hearing, he testified that sometimes he can get very excited and then all of a sudden get very sad and teary eyed. He also testified that he had a habit of checking doors. He stated that emotionally, he is very shallow. He stated that "I can--I function, I smile at you, I can relate to you, I can do things for you but to fill a real deep emotional attachment to my fellow human beings I've done away with that. I, quite frankly I've done away with it and I paid a penalty for that." He stated that since coming back from Vietnam, he has very little tolerance for people, and that he has lost his temper with family and friends. When asked if he maintained reasonably close contact with his siblings, he stated that he does with some, but not with others. He stated that he does not put himself in social environments (Veterans groups, church, etc.). He stated that since he retired, he has very limited friends, so that he could go quite a while without having meaningful contact with anyone. He stated that he prefers it that way. He wondered how much more effective he would have been, occupationally, if he were able to have emotional connections with the people. He also stated, regarding functionality, that sometimes he will go to the grocery store and then easily forget what he was there to buy. He stated that "I don't know whether that's average or not. I truly don't know what level of functioning like that I am." In order to warrant a rating in excess of 30 percent, the Veteran's disability has to be manifested by 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. The Veteran is not seeking treatment for PTSD. As such, the only evidence for the Board to consider consists of his testimony and the June 2011 VA examination report. The Veteran testified that since retiring, he does not have many friends. He also testified that he maintains reasonably close contact with some of his siblings, but not others. Finally, with regard to work, he wondered how much more efficient he could have been if he had emotional connections with co-workers, but then stated that he really does not know what level of functioning he has. The Board notes that the testimony was largely consistent with the symptoms he reported at his June 2011 VA examination. The June 2011 VA examiner noted numerous PTSD symptoms, but overall found the Veteran's functionality to be only mildly impaired. She specifically answered "no" when asked if the Veteran experienced reduced reliability and productivity due to PTSD symptoms. Moreover, most of the symptoms listed under the criteria for a 50 percent rating (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; and impaired abstract thinking were not present. The Board acknowledges the Veteran's disturbances of mood, including suicidal ideation. However, the examiner found these resulted only in mild impairment. With respect to the Veteran's ability to establish and maintain effective work and social relationships, the Veteran indicated that his "very few" friends are not due to the inability to establish relationships, but due to the fact that he prefers to be alone. He specifically testified that he can function and relate to other people. It appears that he simply prefers not to establish and maintain effective work and social relationships. For the forgoing reasons, the Board finds that a preponderance of the evidence weighs against a finding that a rating in excess of 30 percent is warranted. Accordingly, the benefit-of-the-doubt doctrine does not apply, and the claim for an initial or staged rating in excess of 30 percent for PTSD must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to a rating in excess of 30 for PTSD is denied. REMAND Hypertension, sleep apnea, GERD The Veteran has consistently claimed that these disabilities are secondary to his service connected PTSD. At his August 2013 Board hearing, he claimed that when he got back from Vietnam, he controlled his stomach symptoms with Tums and Pepto Bismol. Additionally, he submitted a September 2011 correspondence from Dr. J.G. in which the doctor stated that the Veteran has multiple medical conditions that could be caused or impacted by PTSD, and that these include hypertension and sleep disturbance in the form of periodic limb movement disorder and generalized anxiety disorder. The Veteran has not been afforded a VA examination that addresses whether his hypertension, sleep apnea, and/or GERD were caused or aggravated by his service connected PTSD. The Board finds that a VA examination is warranted. Additionally, the Board notes that the Veteran sought in-service treatment for stomach troubles. Specifically, in February 1976 and August 1976, he complained of nausea, vomiting, and diarrhea. Consequently, an opinion regarding service connection on a direct basis is also warranted. Gout, knees, low back The Veteran submitted a July 2013 correspondence from Dr. J.G., who stated that "these conditions [including osteoarthritis and gout] may be related to or at least exacerbated by [the Veteran's] history of posttraumatic stress disorder." This tentative and speculative nexus opinion is insufficient to grant service connection on a secondary basis. However, it is sufficient to warrant a VA opinion on the issue. Consequently, the Board finds that the Veteran should be afforded a VA orthopedic examination for the purpose of determining whether the Veteran's PTSD caused or aggravated the Veteran's gout, knee disabilities, and lumbar spine disability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should ensure that the VA records are updated and in the claims folder. 2. The Veteran should be afforded a VA examination (or examinations, as necessary) for the purpose of determining the nature, etiology and severity of the Veteran's hypertension, sleep disability, and GERD. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records; the medical history obtained from the Veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner should opine: (a) whether it is at least as likely as not (a 50 percent or greater probability) that hypertension began during or is causally related to service, to include whether it was caused, or aggravated by, his service connected PTSD, (b) whether it is at least as likely as not (a 50 percent or greater probability) that a sleep disability (to include sleep apnea) began during or is causally related to service, to include whether any disability was caused, or aggravated by, his service connected PTSD, (c) whether it is at least as likely as not (a 50 percent or greater probability) that a sleep disability (to include sleep apnea) began during or is causally related to service, to include the February 1976 and August 1976 complaints of nausea, vomiting, and diarrhea, and to include whether any disability was caused, or aggravated by, his service connected PTSD. 3. The Veteran should be afforded a VA orthopedic examination for the purpose of determining the nature, etiology and severity of the Veteran's gouty arthritis, knee disabilities, and degenerative lumbar spine disability. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records; the medical history obtained from the Veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner should opine whether any of these disabilities began during or are causally related to service, to include whether any disability was caused, or aggravated by, his service connected PTSD. 4. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claims remain denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs