Citation Nr: 1332247	
Decision Date: 10/18/13    Archive Date: 10/24/13

DOCKET NO.  08-00 174A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUES

1. Entitlement to an initial compensable disability evaluation for service-connected hypertension.  

2. Entitlement to an initial disability evaluation in excess of 50 percent for service-connected posttraumatic stress disorder with associated depression (hereinafter "PTSD").  

3. Entitlement to a disability evaluation in excess of 20 percent for service-connected residuals of adenocarcinoma of the prostate (hereinafter "residuals of prostate cancer"), from January 1, 2012 to July 26, 2012, and to a 40 percent disability evaluation, thereafter.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Nigam, Counsel


INTRODUCTION

The Veteran served on active duty from April 1969 to January 1973.  

This matter comes before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a February 2007 rating decision by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in San Diego, California, issued in March 2007 by the Albuquerque, New Mexico RO, which granted service connection for PTSD, and assigned a 30 percent disability evaluation, effective June 30, 2006.  Also on appeal is a November 2009 rating decision, issued December 2009, in which the RO granted service connection for hypertension, and assigned a noncompensable disability evaluation, effective June 30, 2006.  In this decision the RO also granted an increased rating for PTSD, and assigned a 50 percent evaluation, effective June 30, 2006.  Because this increased rating does not represent a grant of the maximum benefit allowable under the VA Schedule for Rating Disabilities, the Veteran's PTSD claim remains in appellate status.  AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal).  

Also on appeal is an October 2011 rating decision, which enacted a proposed reduction of the Veteran's service-connected residuals of prostate cancer from 100 percent to 20 percent, effective January 1, 2012.  In a September 2012 rating decision, the RO granted an increased evaluation to 40 percent for the service-connected residuals of prostate cancer, effective July 27, 2012.  As noted, applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded.  Id.  Therefore, this claim also remains on appeal.  

Because Diagnostic Code (hereinafter "Diagnostic Code" or "DC") 7528, the DC under which the Veteran's residuals of prostate cancer is rated, contains a temporal element - its criteria mandate the assignment of a 100 percent evaluation for a certain period of time followed by a VA examination to determine the degree to which any residuals are disabling - this claim is most appropriately characterized as entitlement to a disability evaluation in excess of 20 percent for service-connected residuals of prostate cancer, from January 1, 2012 to July 27, 2012, the effective date of the RO's reduction; and to a 40 percent disability evaluation, thereafter.  See Rossiello v. Principi, 3 Vet. App. 430 (1992) (holding that a 100 percent evaluation for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code contained a temporal element for that 100 percent rating).  

When the applicable DC contains a temporal element, an RO's action in reducing a 100 percent evaluation is not a "rating reduction," per se, as that term is commonly understood.  Rather it is procedural in nature, mandated by law and, as such, subject to the procedural requirements of 38 C.F.R. § 3.105(e), but not the rating reduction provisions of 38 C.F.R. §§ 3.343 and 3.344.  Id.  

The Board notes that in an April 2010 rating decision, the RO also granted service connection for erectile dysfunction associated with the residuals of the Veteran's residuals of prostate cancer, and assigned a noncompensable disability evaluation, effective January 8, 2010.  Thus, evaluation of the Veteran's residuals of prostate cancer will be evaluated based on his residuals including voiding and erectile dysfunctions, status-post treatment by brachytherapy in April 2009.  This decision, will specifically address the Veteran's residuals as they pertain to his voiding dysfunction.  

In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the eFolder on Virtual VA (hereinafter "Virtual VA") to ensure a complete assessment of the evidence.  The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (hereinafter "VLJ") in June 2013.  A transcript of this proceeding is located in Virtual VA.  Here, during the June 2013 hearing, the VLJ specifically clarified the issues on appeal.  Additionally, the VLJ sought to identify any pertinent information/evidence not currently associated with the claims folder that might have been overlooked or was outstanding.  Moreover, neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).  

Also, additional, pertinent medical evidence was added to Virtual VA in August 2012, which was considered most recently by the RO in the September 2012 supplemental statement of the case (hereinafter "SSOC") and September 2012 rating decision.  A waiver of the Veteran's right to review of such evidence by the agency of original jurisdiction (hereinafter "AOJ") was submitted in June 2013.  As such, the Board will proceed to consider the appeal on the merits.  See 38 C.F.R. § 20.1304(c) (2013).  

Finally, the issue of service connection for the tortuous aorta, claimed as secondary to the service-connected hypertension has been reasonably raised by the record (see July 2012 VA hypertension examination report and the June 2013 hearing testimony transcript), but has not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action.  


FINDINGS OF FACT

1. All notification and development actions needed to fairly adjudicate the matters on appeal have been accomplished.  

2. For the entire period of the appeal, the Veteran's hypertension has not been manifested by diastolic pressure predominantly 100 or more, or by systolic pressure predominantly 160 or more, or by a history of diastolic pressure predominantly 100 or more that requires continuous medication for control.  

3. For the entire period of the appeal, the Veteran's PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas.  

4. For the period from January 1, 2012 to July 26, 2012, the Veteran's residuals of prostate cancer had not been manifested by voiding dysfunction requiring the wearing of absorbent materials which must have been changed 2 to 4 times per day; or by urinary frequency with daytime voiding interval less than one hour, or; awakening to void five or more times per night; or by any renal dysfunction, obstructed voiding or urinary tract infections.  

5. For the period from July 27, 2012, the Veteran's residuals of prostate cancer have not been manifested by voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day; or by any renal dysfunction.  


CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial compensable disability rating for service-connected hypertension have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.27, 4.31, 4.104, DC 7101 (2013).  

2. Resolving reasonable doubt in the Veteran's favor, for the entire period of the appeal, the criteria have been met for an initial evaluation of 70 percent for PTSD.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125, 4.130, DC 9411 (2013).  

3. The criteria for entitlement to a disability evaluation in excess of 20 percent for the residuals of prostate cancer, for the period from January 1, 2012 to July 26, 2012, had not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.115a, DCs 7528 (2013).  

4. The criteria for entitlement to a disability evaluation in excess of 40 percent for the residuals of prostate cancer, for the period from July 27, 2012, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.115a, DCs 7528 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit") (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (hereinafter "Court") (as noted by citations to "Vet. App.").  

The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.  

A Veteran bears the "'evidentiary burden' to establish all elements of a claim, including the nexus requirement."  Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009).  The Board's duty is to first determine the probative value of all pertinent medical and lay evidence of record based on its credibility and competency, and then weigh the probative value of the evidence regarding all material elements of a claim.  See 38 U.S.C.A. § 7104(d); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  A "veteran is given the 'benefit of the doubt' 'regarding any issue material' to the veteran's claim 'when there is an approximate balance of positive and negative evidence.'"  Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).  

Thus, if there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may assign greater probative to one medical opinion over by providing an adequate statement of reasons or bases for doing so.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991).  A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

In making all determinations, the Board must also fully weigh the probative value of the lay evidence of record against the remaining evidence of record.  See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012).  If credible, 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(a).  Thus, a layperson is competent to report on the onset and continuity of his symptomatology.  See Kahana, 24 Vet. App. at 438; Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge).  Moreover, lay evidence must not be categorically dismissed as incompetent evidence of medical causation merely because it is lay evidence.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).  Rather, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4.  The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person.  See Jandreau, 492 F.3d 1367-77; see also Kahana, 24 Vet. App. at 438, J. Lance dissenting; Robinson v. Shinseki, 312 Fed. Appx. 336, 339 (Fed. Cir. 2009) (nonprecedential).  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).  

The Duties to Notify and Assist

The Veterans Claims Assistance Act (hereinafter "VCAA") describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  See 38 C.F.R. § 3.159(b)(1).  

With regard to notice regarding an initial evaluation following the grant of service connection, once service connection is granted, the claim is substantiated and additional VCAA notice is not required; 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).  

Filing a notice of disagreement (hereinafter "NOD") begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  Where a claim has been substantiated after the enactment of VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements.  Id.  There has been no allegation of prejudice with regard to the notice in this case; hence further VCAA notice is not required with regard to the initial rating appeal.  

Pre- and post-adjudication VCAA letters dated in July 2006, February 2008, June 2008, October 2009, December 2009, February 2010 and July 2012, collectively explained the evidence necessary to substantiate the claims, and informed the Veteran of his and VA's respective duties for obtaining evidence.  These letters also explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006).  As noted, the claims were readjudicated in the September 2012 rating action and in the September 2012 SSOC.  Accordingly, prejudicial error in the timing or content of VCAA notice has not been established and any error is not outcome determinative.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency).  

Further, if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).  

VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims.  The claims file contains in-service and post-service medical treatment records, include private treatment records from practitioners the Veteran has identified, and reports of VA examinations and addendum (also known in the record as Disability Benefits Questionnaires or "DBQs") (January 2007, February 2008, October 2008, April 2010, July 2011, July 2012, August 2012 and September 2012).  With respect to the VA examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  These VA examination reports generally reflect review of the claims file, examination of the Veteran, and clear description and evaluation of his psychiatric, hypertension and residuals of prostate cancer disabilities.  In particular, these examination findings are sufficient for proper application of the relevant rating criteria and adequate for the purpose of adjudication the issues decided below.  

Additionally, as noted above, in a case involving the propriety of a reduced rating, the procedural requirements of 38 C.F.R. § 3.105(e) govern.  Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons.  In addition, the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level.  38 C.F.R. § 3.105(e) (2013).  

In this case, in considering a possible reduction in the evaluation assigned the Veteran's residuals of prostate cancer, the RO satisfied these procedural requirements.  Specifically, in July 2011, the RO issued a rating decision and notice to the Veteran proposing that the 100 percent evaluation assigned his prostate cancer be reduced to 20 percent for residuals of the cancer.  This rating decision and notice set forth the material facts and reasons for the proposed reduction.  The RO informed the Veteran that he had 60 days to submit evidence to show that the change should not be made.  See 38 C.F.R. § 3.105(i)(2) (2013).  

Where a reduction of benefits is found warranted following consideration of any additional evidence submitted and the reduction was proposed under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires.  38 C.F.R. § 3.105(i)(2)(i) (2013).  The RO also satisfied this requirement by providing the Veteran 60 days from July 2011 to submit additional evidence, notifying the Veteran of the actual reduction in October 2011, and allowing a 60-day period to expire before assigning the reduction an effective date of January 1, 2012.  

Following the reduction, the Veteran contended that he was more than 20 percent disabled as a result of the residuals of his prostate cancer.  The RO did not provide him notice pertaining to this claim, timely or otherwise.  Instead, the RO issued a statement of the case (hereinafter "SOC") in September 2012, and the September 2012 rating decision, citing the criteria governing ratings of prostate cancer residuals.  

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the claims on appeal.  He has been given ample opportunity to present evidence and argument in support of his claims.  Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issues have been obtained and the case is ready for appellate review.  The Board additionally finds that general due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2013).  

The Merits of the Claim-Increased Ratings

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2013).  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In Fenderson v. West, 12 Vet App 119, 125-26 (1999), however, the Court distinguished appeals involving a veteran's disagreement with the initial rating assigned at the time a disability is service-connected.  Accordingly, where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required.  See id. at 126-27.  Moreover, the Board notes, the Court held that in claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2 (2013).  

Ratings shall be based, as far as practicable, upon the average impairments of earning capacity.  However, from time to time, VA will readjust this schedule of ratings in accordance with experience.  To accord justice in an exceptional case in which 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 an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  

Hypertension

The Veteran's hypertension is rated as noncompensable pursuant to 38 C.F.R. § 4.104, DC 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension).  Given the nature of present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in June 30, 2006.  The Board's adjudication of this claim accordingly satisfies the requirements of Hart.  

DC 7101 provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension).  A 10 percent rating is warranted with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; when an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control.  A 20 percent rating is warranted with diastolic pressure predominantly 110 or more or; systolic pressure predominantly 200 or more.  A 40 percent rating is warranted with diastolic pressure predominantly 120 or more.  A 60 percent rating is warranted with diastolic pressure predominantly 130 or more.  38 C.F.R. § 4.104, DC 7101.  

Note (1): Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.  

Note (2): Evaluate hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation.  

Note (3): Evaluate hypertension separately from hypertensive heart disease and other types of heart disease.  

Where the criteria for a compensable rating under a diagnostic code are not met, and the schedule does not provide for a noncompensable rating, as in DC 7101, a noncompensable rating will be assigned when the required symptomatology for a compensable rating is not shown.  38 C.F.R. § 4.31 (2013).  

The medical evidence of record for the entire period of the appeal reflects that the Veteran's hypertension is not manifested by diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more.  

Turning to the evidence, the Veteran's service treatment records are without findings of  hypertension or isolated systolic hypertension confirmed by readings (diastolic blood pressure predominantly 90 mm. or greater, and/or systolic blood pressure predominantly 160mm. or greater with a diastolic blood pressure of less than 90 mm.) taken two or more times on at least three different days.  

Private treatment records from "Union County General Hospital," dated from November 1995 to October 2008, reflect blood pressure readings ranging from 100/60 to 158/98.  Notably, in April 1998, the Veteran's blood pressure reading was 160/100.  Also, in December 2001, the Veteran's blood pressure readings were 178/108 and 172/100.  In October 2008, the Veteran's blood pressure reading was 160/100.  He presented for treatment in an anxious state.  In November 2008, the Veteran reported that his hypertension was worsening, and that he experienced anxiety, loss of appetite, racing pulse and heart flutter for the previous 2 weeks.  

VA outpatient treatment records, dated from August 2002 to July 2012, reflect blood pressure readings ranging from 108/67 to 148/79.  A September 2002 VA outpatient treatment record indicates the Veteran reported that his blood pressure had been "good" since starting Felodipine.  He noted that his readings had been 130's/80's.  His blood pressure reading at that time was again 148/79.  An April 2003 VA outpatient treatment record indicates the Veteran reported he had lower blood pressure reading at work and home, with systolic blood pressure readings consistently in the 130's and 120's.  He was continued on Felodipine, and was diagnosed with hypertension at that time.  A December 2007 VA outpatient treatment record reveals the Veteran reported that he had been checking his blood pressure at his place of employment (a hospital), which he had found to be running "good."  He noted that his highest blood pressure was once 130/90, but typically was 120/70 to 130/70.  He indicated that he had not taken Lisinopril since December 2006, but remained on Felodipine.  

In February 2008 the Veteran underwent a VA hypertension examination, during which the examiner noted that the Veteran was first diagnosed with hypertension in 1995, at which time he was started on medication.  The examiner indicated that the Veteran was being treated with 10 milligrams of Felodipine XR and was put on a low salt diet.  The Veteran reported symptoms of headaches 3 to 4 times a month, occasional trouble finding words, tingling down from his low back, nocturia 3 times a night, heart palpitations with anxiety, daily nausea, and erectile dysfunction, along with weakness, confusion, memory impairment, vision changes, dyspnea, paresthesis and confusion.  At the time of the examination, the Veteran's blood pressure reading was 148/74.  The examiner noted that the Veteran's diagnosis of hypertension had been previously established.  Additional blood pressure readings taken during the examination were 145/86, 142/77 and 148/74.  Test results of an echocardiogram taken in conjunction with the examination included findings of normal sinus rhythm, nonspecific T abnormality, prolonged QT, and abnormal ECG, although the Veteran denied any chest symptoms.  The Veteran was diagnosed with essential hypertension.  

During an October 2008 VA PTSD examination, the Veteran reported that his hypertension had worsened, and was 165/103 during his last reading.  He indicated that he had to undergo a medication change for his hypertension, and that he was almost hospitalized for his symptoms.  

In his February 2010 NOD, the Veteran reported that on October 3, 2008 his blood pressure reading was 165/103.  In his VA Form 9, Appeal to the Board of Veterans' Appeals (hereinafter "Form 9"), the Veteran reiterated that in October 2008 his blood pressure reading was 165/103 after he suffered an anxiety attack.  

Most recently, in July 2012, the Veteran underwent a VA hypertension examination, during which he was diagnosed with a history hypertension since 1980.  The examiner noted that the Veteran's hypertension treatment included continuous medication, including Triamterene/HCTZ, Amlodipine and Lisinopril.  His blood pressure readings taken in conjunction with the examination were 128/84, 110/69 and 112/74.  The examiner noted that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more.  The examiner observed that the Veteran had a moderately tortuous aorta found incidentally on chest X-ray in July 2012 at the Union County Hospital emergency room, and opined that a moderately tortuous aorta may be due to chronic hypertension.  The examiner concluded that the Veteran's hypertension did not impact his ability to work.  

The Veteran's hypertension is rated as noncompensable, as his diagnosed hypertension is not manifested by diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more; or diastolic pressure predominantly 100 or more requiring continuous medication for control, based on the medical evidence of record.  

The Board acknowledges that during the Veteran's hearing testimony he argued that he was entitled to an increased evaluation for his hypertension.  The Veteran reported that he currently takes four different kinds of blood pressure pills and has done so since 2005, and that prior to getting his blood pressure under control in 2008, his readings ranged from 135/98 to 165/120.  The Veteran is competent in this case to report his hypertension symptoms, but nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating his blood pressure.  This is especially true since VA evaluation of hypertension is predicated on empirical data, namely, as mentioned, blood pressure readings taken over a course of time, not just in isolation.  Therefore, a medical expert opinion is more probative regarding the degree of severity of the Veteran's hypertension in this case.  King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012).  Despite the Veteran's contentions that his blood pressure readings should entitle him to at least a 10 percent disability evaluation, the medical evidence does not show impairment so as to warrant the assignment of a compensable rating for any period of the appeal.  In this regard, regardless of outlying blood pressure readings of diastolic readings 100 or more, or systolic readings of 160 or more, the readings of record predominantly fall under those levels.  

Based on the above, the Board must conclude that the medical evidence does not demonstrate that the Veteran's hypertension more nearly approximates diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more that requires continuous medication for control, as contemplated by a 10 percent rating under DC 7101.  The evidence also fails to show that at any point in the appeal the Veteran's hypertension has been manifested by diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more, which would entitle him to a 20 percent rating.  38 C.F.R. § 4.104, DC 7101.  

"Staged ratings" are not warranted in this case because although the schedular criteria for a 10 percent rating were met a few times during the period under appellate review, such as the April 1998 blood pressure reading of 160/100, the December 2001 blood pressure readings of 178/108 and 172/100, and the October 2008 blood pressure reading of 160/100.  However, the Board finds that these elevated blood pressure readings were isolated instances, and not were representative of predominant elevated readings.  In this regard, the April 1998 reading was taken while the Veteran was being treated for flu and cold symptoms.  The December 2001 readings were taken from each arm during a blood pressure check, at which time the Veteran's hypertension medication was being changed.  The October 2008 reading was taken while the Veteran was undergoing what appeared to be an anxiety attack.  Moreover, while the Veteran has asserted that he has had blood pressure readings that are greater than 160/100, he has failed to establish that those readings were predominant.  See Hart, 21 Vet. App. at 505; Fenderson, 12 Vet. App. at 126-27.  

Accordingly, there is no support for an increased rating over any portion of the rating period on appeal.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).  

PTSD

The Veteran seeks an increased initial evaluation in excess of 50 percent for his service-connected PTSD, as rated under 38 C.F.R. § 4.130, DC 9411 (2013).  Given the nature of present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in June 30, 2006.  The Board's adjudication of this claim accordingly satisfies the requirements of Hart.  After a full review of the record, the Board finds the Veteran's PTSD more nearly approximates the criteria for a 70 percent evaluation for the entire period of the appeal.  In this regard, as will be discussed below, the record reveals the Veteran has displayed symptoms of suicidal ideation, obsessional rituals, frequent panic attacks and depression, impaired impulse control with periods of violence, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships.  

The schedular disability rating criteria are set forth in the General Rating Formula for Mental Disorders of 38 C.F.R. § 4.130, which provides that a rating of 10 percent is assignable for 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 with symptoms controlled by continuous medication.  

A rating of 30 percent is assignable for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally performing 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 rating of 50 percent is assignable for 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 per week; difficulty in understanding complex commands; impairment of short- and long-term memory (retention of only highly-learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  

A rating of 70 percent is assignable for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships.  

The maximum rating, 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.  38 C.F.R. § 4.130.  

(The joining of schedular criteria by the conjunctive "and" in a diagnostic code does not always require all criteria to be met, except in the case of diagnostic codes that use successive rating criteria, where assignment of a higher rating requires that elements from the lower rating are met.  Tatum v. Shinseki, 23 Vet. App. 152 (2009).)  

When evaluating the level of disability from a mental disorder, consideration must be given to the extent of social impairment, but a rating may not be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b).  Likewise, a disability rating for mental disorders must be based on all the evidence of record bearing 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) (2013).  Also, when evaluating mental health disorders, the factors listed in the rating criteria are to be considered simply examples of the types and degree of symptoms, or their effects, that would justify a particular rating; analysis should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme.  See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).  

According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered.  38 C.F.R. § 4.126(a) (2013).  In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  Id.  Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b) (2013).  

One factor for consideration is the Global Assessment of Functioning (hereinafter "GAF") score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (hereinafter "DSM-IV")). GAF scores between 61 and 70 reflect either 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, has some meaningful interpersonal relationships.  By comparison, GAF scores between 51 and 60 reflect either 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 co-workers), and GAF scores between 41 and 50 reflect either serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting); or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See Quick Reference to the Diagnostic Criteria from DSM-IV, Washington, D.C., American Psychiatric Association, 1995.  While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores.  See 38 C.F.R. § 4.130.  

Turning to the evidence, the Veteran's service treatment records are without findings of or treatment for any psychiatric disorder.  Post-service, a VA outpatient treatment record, dated in August 2002, shows that the Veteran denied experiencing any nightmares or flashbacks of Vietnam.  He reported that he taught karate and worked as an environmental manager at a hospital.  He also noted that he was married for 25 years, and that he had two grown sons who lived away from home in other states.  An April 2003 VA outpatient treatment record reflects that the Veteran indicated he was still doing karate for 2 hours a day, bi-weekly, which he enjoyed very much.  He reported symptoms of disturbed sleep patterns over the previous several years, but denied intrusive thoughts or dreams.  In January 2005, he reported symptoms of nightmares and insomnia, and he was observed to have low mood.  In January 2006 the Veteran was offered a PTSD evaluation by VA.  A January 2006 VA social work report reflects the Veteran complained of bouts of anger, road rage, difficulty with sleep, concentration and memory deficits, and generalized relationship problems.  It was noted that the Veteran served in combat, and that he had manifested PTSD symptoms.  A VA psychiatry note of the same date reveals that the Veteran was diagnosed with PTSD.  His mood was observed to be mildly depressed appearing and possibly euthymic, but the remainder of his mental status evaluation was unremarkable.  He was assigned a GAF score of 75.  

A June 2006 VA mental health assessment shows the Veteran had an exacerbation of PTSD symptoms after his son was deployed to the Persian Gulf.  The practitioner conducting the assessment observed that the Veteran reported nightly insomnia, hypervigilance, increase startle response, irritability in the form of rage at home and at work, marked decrease in interest, and detachment and estrangement from others.  He indicated that his main recreation and leisure involved karate.  On mental status examination, he was observed to have a casual appearance; no psychomotor agitation/retardation, although he was tearful at times; sparse speech; anxious and dysphoric mood and affect; linear thought process; no suicidal or homicidal ideation; fair judgment; and grossly intact mental state.  The Veteran was assigned a GAF score of 55 at the time of the evaluation, and it was noted that he had problems at work and home due to his anger.  

An August 2006 statement provided by the Veteran's supervisor, "Administrator Stephen Campbell" at the "Union County General Hospital," indicates that Administrator Campbell worked with and supervised the Veteran over the previous six years in his role as "Environmental Services Director."  Administrator Campbell observed that the Veteran started to exhibit a change in his work performance and habits six months prior, and appeared to be more tentative in his actions.  Administrator Campbell also noted that the Veteran seemed to have a loss of focus on his work responsibilities, and there seemed to be an anxiety/nervousness in his mannerisms.  Administrator Campbell described the Veteran as previously behaving like a "go getter," but indicated that he began to become very unsure of himself.  Administrator Campbell noted that after observing the Veteran's decline in his performance at work for several months, he spoke to the Veteran about his behavior.  The Veteran then informed Administrator Campbell that he was experiencing PTSD, for which he had been treated at a VA Medical Center (hereinafter "VAMC").  Administrator Campbell indicated that this revelation led to a better understanding regarding the Veteran's declining work performance over the previous six months.  

In October 2006, Administrator Campbell provided a second statement attesting to the Veteran's behavior at work.  Administrator Campbell noted that the Veteran supervised the maintenance, housekeeping, laundry and safety staff in his role as Environmental Services Director.  Administrator Campbell observed that the Veteran had always been a dedicated and hardworking manager; but that his work habits changed nine months prior, and that he appeared to lack focus in his tasks, his decision-making skills were not as sharp as in the past, and during meetings he appeared to be anxious and unsure of himself.  

In December 2006, the Veteran underwent a VA social work evaluation, during which he spoke of family, social and occupational difficulties in his life.  The social worker noted that clearly the Veteran was having increased problems with PTSD.  The social worker reported that the Veteran's boss pointed out things to him that he was not aware of at all.  The Veteran reported that he was having a hard time getting himself to work, and that he was seen by his employer as "not as competent as before."  The social worker noted that the Veteran's memory, concentration and focus were impaired, and that he had begun to write notes to himself for tasks to be completed.  

In January 2007, the Veteran underwent a VA PTSD examination, during which he reported a post-service medical history of drinking heavily for the first year out of service while he was unemployed.  He indicated that he then worked for a year washing dishes, after which he worked at various jobs including at the airport, at a power plant, at a grocery store, and at a nursing home before obtaining work as an environmental manager at a hospital.  The examiner noted the Veteran had supervised several staff in maintenance and housekeeping for the previous 19 years.  The examiner noted that the Veteran's shortest job lasted six months, and the Veteran reported that he had been fired from two jobs.  He noted that he had been called into his supervisor's office and was asked about his behavior, which he believed was an indicator that his behavior had worsened in the previous six months.  He noted that he had frequent arguments with coworkers, and that he typically worked a 40-hour week.  

The Veteran indicated that he had been married for 27 years to the same woman, and had two adult sons and four grandchildren.  He noted that he had not seen two of his grandchildren because of the distance between them.  The examiner noted that the Veteran became tearful at discussing his relationship with his wife, and noted that she had stuck with him through his moods and anger.  He attributed his being alive to her.  The Veteran described becoming physically violent with his wife in the past, and noted that in later years their altercations had become more verbal.  He denied any legal problems or education since his discharge from the military, and reported that he had few social interactions and that he watched television as his leisure activity.  The Veteran reported a history of past assaultiveness, with the last altercation occurring approximately 5 years prior, and the total number of altercations in the previous 30 years of approximately 5 or 6.  

The Veteran described symptoms of recurrent, intrusive recollections of his combat experiences; recurrent distressing dreams; avoidance and numbing behaviors; psychogenic amnesia for approximately 30 percent of what happened to him in service; feelings of detachment where he was only close to his wife; diminished interest and participation in significant activities; restricted range of affect; sense of a foreshortened future; hyperaroual; sleep difficulties; irritability and anger outbursts 2 to 3 times per week; difficulty concentrating 40 percent of the time; hypervigilance all the time; exaggerated startle response 2 to 3 times per week; and a history substance abuse.  The Veteran denied any in-patient psychiatric hospitalizations and outpatient counseling.  He reported symptoms of experiencing depression approximately 1 to 2 times per week, with each episode lasting days at a time; isolating, whether at home or at work; decreased energy; feelings of hopelessness and worthlessness; and decreased appetite with weight loss of 10 pounds in the previous month.  The Veteran denied symptoms of suicidal ideation, homicidal ideation, or hallucinations.  The Veteran was diagnosed with chronic, moderate to severe PTSD, and was assigned a GAF score of 50.  The examiner observed that the highest GAF score in the previous year was 55.  The examiner observed that the Veteran's alcohol use made it difficult to clearly assess the effect of his PTSD symptoms, but opined that his PTSD symptoms appeared to have significantly impaired the Veteran's social functioning, and moderately impaired his occupational functioning.  

In January 2007, the Veteran's spouse submitted a statement, wherein she observed that the Veteran experienced symptoms of sleep deprivation and anger related to his PTSD.  She noted that the Veteran was highly irritable, and was prone to "just blow up on [her]!"  She also indicated that he had difficulty getting to work, and that it was difficult to sleep with the Veteran because of his nightmares.  

A March 2007 VA social work report reflects the Veteran reported experiencing continued stress in the work place, and indicated that he would be in much worse shape if his wife were not as supportive as she was.  At that time he expressed interest in joining a PTSD outpatient support group at VA, although he noted that distance from the clinic and his full-time employment prevented him from going.  An April 2007 VA social work report reflects that the Veteran reported struggling at work with decreased ability to focus, concentrate, and execute supervisory and work tasks.  The Veteran reportedly feared being called into his supervisor's office to be chastised.  The social worker noted that the Veteran's motivational level was poor.  

In April 2007, Administrator Campbell submitted a third statement in support of the Veteran's claim.  In this statement, Administrator Campbell noted that the Veteran's job effectiveness had significantly declined from previous years.  He was characterized as not as reliable or productive with his responsibilities as he was in the past.  Administrator Campbell reiterated that during meetings the Veteran appeared to be anxious and unsure of himself.  Also, the Veteran purportedly had trouble communicating with his staff.  Administrator Campbell indicated that Union County General Hospital would consider the appropriateness of a medical leave for the Veteran based on his PTSD symptoms.  

A May 2007 VA social work report indicates the Veteran was assigned a GAF score of 45.  During his visit he referenced his workplace issues and those he had at home.  He characterized himself as feeling "very down" and unmotivated at work.  He also noted that it was difficult to keep up doing his hobby of teaching and practicing martial arts.  The social worker noted that the Veteran had a flat affect.  

In a statement submitted in April 2008, the Veteran reported that he continued to experience problems at work and at home due to his PTSD.  In June 2008, he submitted a copy of his pay stub from work, which he annotated with information regarding how much time he missed at work due to his PTSD.  The Veteran indicated that he had a "hard to impossible time" working a full week.  He noted that some days were worse than others, but that generally he felt angry and did not want to be around anyone "to the point of hitting and just wacking [SIC] out."  He reported that when he acted this way he also had trouble with concentrating and being around others.  

In October 2008, the Veteran underwent a second VA PTSD examination.  Here, the Veteran reported outpatient treatment in September 2008, July 2008, April 2008 and February 2008, and that he had 8 sessions to treat his PTSD.  The Veteran described his marital and family relationships as being in a 31-year marriage.  However, during the previous year the Veteran and his wife separated for several days due to anger management issues, although they reunited shortly thereafter.  The Veteran reported that he was not close to his two grown sons due to increased social isolation.  He denied having any significant friendships, and reported that he used to collect coins "a long time ago," but had lost interest in "just about everything."  The Veteran denied a history of suicide attempts, but it was noted that he had a history of violence/assaultiveness.  The Veteran described situations in which he became physically aggressive towards his wife 4 times per month.  He noted that she had never required medical attention as a result of these incidents, but that she had been close to calling the police once during the past year as a result of these incidents.  He also indicated that he got violent towards an employee, when he hit the employee, for which he was reprimanded by his manager at work.  He also had difficulties with his other employees due to irritability and being easily angered by them.  He noted that he tended to shun socializing with them, which made it difficult to manage them.  He also noted that his employer complained of his difficulty focusing his attention and concentration at meetings.  The Veteran reported that these problems had worsened in the previous year.  The Veteran also continued to report having a drinking problem, which he indicated added to his marital problems.  

On psychiatric evaluation, the examiner noted that the Veteran was neatly groomed and appropriately dressed.  The examiner observed that psychomotor activity and speech were unremarkable; the Veteran was cooperative toward the examiner; his affect was constricted; his mood was anxious, expansive and dysphoric his attention was intact; he was oriented to person, place and time; and his thought process was unremarkable.  The examiner observed that the Veteran had occasional thoughts of suicide, although he indicated that he did not follow through with those thoughts due to not wanting to hurt his wife and children.  The examiner noted that the Veteran understood the outcome of his behavior, was of average intelligence, and understood that he had a problem.  The Veteran denied experiencing any hallucinations or inappropriate behavior, although he described experiencing obsessive and ritualistic behavior such as checking his stove at home, his door at home, and his boiler at work.  He also described experiencing panic attacks three times a week.  The Veteran denied the presence of homicidal thoughts, but, as noted, had thoughts of suicide bi-monthly, lasting for approximately 5 minutes, without intent or plan.  The examiner noted the extent of the Veteran's impulse control was poor, and he had episodes of violence, including domestic violence against his wife once or twice per month, and one episode of violence at work.  The examiner noted there was no problem with the Veteran's ability to maintain minimum personal hygiene, and there were no problems with the activities of daily living.  The examiner noted that the Veteran's remote memory and recent memory was mildly impaired, but his immediate memory was normal.  The examiner explained that the Veteran had difficulties with dates, and had some difficulty answering questions.  

The examiner observed that the Veteran was employed, full-time, at the same job he has been in for over 20 years.  The Veteran indicated that in the previous 12-month period he lost three weeks at work due to his PTSD symptoms.  Problems related to occupational functioning included decreased concentration, inappropriate behavior, increased absenteeism, increased tardiness, and poor social interaction.  The Veteran was diagnosed with chronic, moderate to severe PTSD, and was assigned a GAF score of 40.  The examiner commented that the changes in functional status and quality of life since the Veteran's last examination included changes in performance in his employment, and changes in family role functioning.  The Veteran reported increased difficulty at his job, including being reprimanded in 2006, and once during the previous year for attendance problems and anger management problems on the job.  He also reported domestic violence problems at home with his wife and some problems with relationships with his adult children.  The Veteran indicated that he had limited friendships.  The examiner noted that much of the Veteran's problems in functioning appeared to be related to problems in irritability and in the ability to tolerate social interactions, as well as problems with his sleep.  The examiner also noted that the Veteran's psychiatric condition and impairments seemed to be improving somewhat as a result of his treatment, although his condition was also characterized as chronic.  

The examiner concluded that there was not total occupational and social impairment due to PTSD signs and symptoms.  However, the Veteran's PTSD signs and symptoms resulted in deficiencies in judgment, thinking, family relations, work, and mood.  The examiner noted the Veteran's thinking was impaired in the form of impaired concentration and memory, resulting in problems at work.  His family relations were impaired in the form of increased irritability and anger control problems at home.  His work was impaired due to irritability, sleep disturbance, increased anger at work, and avoiding social contact as a method of attempting to cope with increased irritability.  The Veteran's mood was impaired as his PTSD symptoms appeared to increase his depressive symptoms.  The examiner noted there was reduced reliability and productivity due to the Veteran's PTSD symptoms, including loss of work time, tardiness, and being reprimanded due to absenteeism and angry outbursts.  

VA mental health clinic treatment records, dated in January 2010, generally show the Veteran admitted to experiencing suicidal ideation, but denied plan or intent.  However, in the beginning of the month, the Veteran was diagnosed with depression with a history of some suicidal ideation, with some thoughts of a plan, but not current suicidal ideation.  An October 2010 VA psychiatry note reveals the Veteran cancelled his vacation plans because he was too depressed to go.  He continued to describe symptoms of suicidal ideation without plan or intent.  A November 2010 VA treatment record indicates the Veteran reported that he had been doing some karate classes at home but had not gotten back to formal classes.  

In August 2012, the Veteran underwent a VA PTSD examination, during which he was diagnosed with a history of PTSD since 2008.  The examiner opined that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routing behavior, self-care and conversation.  The examiner observed that the Veteran had been married for 38 years, and that the marriage was "good overall" according to the Veteran.  The Veteran reported that his wife was supportive, and that his two sons were doing well, although he did not communicate with them as often as he would like.  He indicated that he and his wife watched television together, but he denied that he did not have any hobbies or activities.  The examiner noted that the Veteran was employed on a full-time basis at the Union County General Hospital, where he had been employed for the past 24 years.  The Veteran indicated that he enjoyed his job, but that he had to rely on medication to cope with certain demands of his job, including taking Xanax prior to meetings to reduce anxiety.  The Veteran noted that he had previously been involved in outpatient counseling on a regular basis, 2 to 3 years prior.  He denied a history of legal problems or behavioral difficulties prior to, during, and after his military service.  During the examination, the Veteran described symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, and flattened affect.  The examiner opined that the Veteran was capable of managing his own affairs.  

During his Board hearing, the Veteran testified that his PTSD symptoms, including increased irritability, depression, self-isolation and nightmares, have caused him difficulty in terms of functioning at work.  The Veteran denied that he was counseled at work for his PTSD symptoms, but noted that he avoided attending meetings and interacting with his coworkers without the help of medication to function.  

Notably, in a July 2013 statement, the Veteran reported that work had been difficult for the previous several years, and that he experienced an anxiety attack at work, which caused him to be put on anti-anxiety medication.  He indicated that he was coping with his PTSD symptoms inside and outside of work because of his medication, but that he was suicidal, had feelings of despair, and memories and nightmares of his military experiences.  

The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence.  See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991).  It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  

The Board observes that for the entire period of the appeal, the assigned GAF scores, generally ranging from 45 to 60, with scores averaging at 50, generally represent serious symptoms, or any serious impairment in social, occupational or school functioning.  While not determinative, a GAF score is highly probative as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders.  See Massey v. Brown, 7 Vet. App. 204, 207 (1994).  As to social and occupational functioning, the Veteran had consistently been shown to have experienced irritability and aggressive behavior, as well as depressed mood, and occasional suicidal ideation, which impacts his employment.  He has also consistently been shown to have experienced poor memory and poor concentration.  It is also apparent from the record that the Veteran's home life had been impacted by his psychiatric disability, as he and his wife have admitted to periods of estrangement and incidents of domestic violence.  The Veteran has also been estranged from his sons, self-isolates, and has almost no outside activities.  The Board finds the Veteran's statements and those of his wife regarding the severity of his symptoms to be highly credible, as they are internally consistent and are supported by the competent and credible clinical record.  

Meanwhile, as to symptoms that are directly contemplated under DC 9411, the clinical record and the hearing testimony indicate that the Veteran has had occasional suicidal ideation; impaired impulse control; inability to establish and maintain effective relationships; and difficulty in adapting to stressful circumstances.  Though not every one of the symptoms denoted under DC 9411 for assignment of a 70 percent rating were presented, when resolving reasonable doubt in the Veteran's favor, there was sufficient indication of qualifying impairment that the criteria for a 70 percent schedular rating were effectively met for the entire period of the appeal.  See 38 C.F.R. § 4.3.  

However, the Board does not find that the Veteran's symptomatology denotes total occupational and social impairment.  As noted, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126(b) (2013).  While the record clearly demonstrates that the Veteran experiences almost total social impairment, insofar as he may be considered to be in persistent danger of hurting others, the record does not show that the Veteran is totally occupationally impaired.  In this regard, the Veteran, by his own admission, is still employed despite his reported physical act of violence and verbal outbursts.  Also, he has not demonstrated more severe symptoms such as active suicidal and homicidal ideation, or persistent delusions or hallucinations.  He has not been shown to have gross impairment in thought processes, memory, behavior or communication, as the record clearly illustrates he was always oriented to person, time and place, and was able to communicate effectively during his treatment.  However, treatment records from this period reflected symptoms of unprovoked irritability, impaired impulse control, difficulty adapting to stressful circumstances, moderate cognitive impairment and short-term memory impairment, which are more appropriately representative of the criteria for a 70 percent rating than that of a finding of total occupational impairment.  

Having closely reviewed the record, and mindful of applying VA's doctrine of resolving reasonable doubt in favor of the claimant, the Board will award an evaluation of 70 percent for the Veteran's service-connected PTSD.  As the symptomatology in question had existed since the Veteran's initial onset of PTSD, the Board will therefore assign a 70 percent evaluation, and no more, for the entire period of the appeal.  In reaching this determination, the Board is cognizant of the fact that the Veteran has continuously demonstrated psychiatric signs and symptoms best approximated by a finding of occupational and social impairment with deficiencies in most areas.  See 38 C.F.R. § 4.130, DC 9411.  

Residuals of Prostate Cancer

The Veteran claims entitlement to an increased evaluation for residuals of his prostate cancer for the entire period of the appeal.  He alleges that the 100 percent evaluation initially assigned this disability should not have been reduced to 20 percent.  He asserts that he is still 100 percent disabled due to the residuals of his prostate cancer.  

The RO has evaluated residuals of the Veteran's prostate cancer as 20 percent disabling, from January 1, 2012 to July 27, 2012, and 40 percent disabling since July 27, 2012, under DC 7528.  The time period preceding January 1, 2012, during which the Veteran's prostate cancer was rated 100 percent disabling, is not at issue in this decision.  

DC 7528, which governs ratings of malignant neoplasms of the genitourinary system, provides that a 100 percent evaluation is assignable following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure with a mandatory VA examination at the expiration of 6 months.  Following that examination, if there has been no local reoccurrence or metastasis, residuals are to be evaluated as voiding dysfunction or renal dysfunction, whichever predominates.  38 C.F.R. § 4.115b, DC 7528 (2013).  

Voiding dysfunction is rated based on the particular condition involved, to include urine leakage, frequency, or obstructed voiding.  38 C.F.R. § 4.115a (2013).  A 20 percent evaluation is assignable for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence if requiring the wearing of absorbent materials, which must be changed less than two times per day.  A 40 percent evaluation is assignable for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence if requiring the wearing of absorbent materials, which must be changed two to four times per day.  A 60 percent evaluation is assignable for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence if requiring the use of an appliance or the wearing of absorbent materials, which must be changed more than four times per day.  Id.  

Urinary frequency is rated based on voiding intervals and time of voiding.  A 20 percent evaluation is assignable for a daytime voiding interval between one and two hours, or; awakening to void three to four times nightly.  A 40 percent evaluation is assignable for a daytime voiding interval less than one hour, or; awakening to void five or more times per night.  Id.  

Urinary tract infections, representative of obstructed voiding, are rated based on the treatment the infection requires.  A 30 percent evaluation is assignable for a recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management.  Id.  

With regard to renal dysfunction, a 30 percent evaluation is assignable when there is albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under DC 7101 provides.  A 60 percent evaluation is assignable for constant albuminuria with some edema; or, definite decrease in kidney function; or hypertension at least 40 percent disabling under DC 7101.  Id.  

A 20 percent evaluation is assignable for deformity of the penis with loss of erectile power.  This evaluation is the maximum assignable under DC 7522.  38 C.F.R. § 4.115b, DC 7522 (2013).  Special monthly compensation is also payable for erectile dysfunction, but the Veteran is already in receipt of such compensation, effective from January 2010.  

From January 1, 2012 to July 26, 2012

By way of background, private treatment records from "Dr. Ford" and "Dr. Stafford" show that in April 2009 the Veteran underwent brachytherapy ultrasound planimetry with radiation planting and permanent, full palladium 103 seed implant for radiation therapy after being diagnosed with adenocarcinoma of the prostate.  

A July 2011 VA genitourinary examination report reveals the Veteran denied a history of renal dysfunction or renal failure; acute nephritis; hydronephrosis; general systemic symptoms due to genitourinary disease, and cardiovascular symptoms.  He described the frequency of his voiding intervals as occurring every 3 hours during the day, and 4 times a night.  He denied any voiding hesitancy, urge incontinence, stress incontinence, dysuria, straining to urinate, hematuria, urine retention, urethral discharge, and renal colic in the past 12 months; but reported post-void dribble, incomplete emptying, occasional urgency, and occasional precipitancy.  He indicated that he had a good urine stream.  The examiner observed that the Veteran did not report any incontinence, and did not require any absorbent material or incontinence appliance.  Also, the Veteran did not require intermittent or continuous catheterization, and did not undergo any invasive or noninvasive procedures to treat the residuals of his prostate cancer.  The examiner noted that the Veteran's sexual function was impacted by his residuals of prostate cancer, but there was no trauma/surgery affecting the penis or testicles.  

On physical examination, the examiner observed that the Veteran was uncircumcised; had no penile deformity or plaques; had descended testes bilaterally; had no masses; had no pain to palpation; had a normal epididymis bilaterally; and had no inguinal hernias.  The Veteran was diagnosed with adenocarcinoma of the prostate, status-post brachytherapy with associated erectile dysfunction and voiding dysfunction.  

In a Form 9, received in January 2012, the Veteran reported that he underwent radiation therapy for his prostate cancer, and that he continued to see his cancer doctors every six months despite being in remission.  He noted that he experienced sexual dysfunction due to his prostate cancer brachytherapy.  

The Board finds that neither the clinical nor lay record, dated from January 1, 2012 to July 26, 2012, reveals that the Veteran had experienced more than nighttime voiding of 4 times nightly, which would only entitle him to a 20 percent evaluation under DC 7528.  Genitourinary symptoms this severe warrant the assignment of no more than a 20 percent schedular evaluation under DC 7528 based on voiding dysfunction, the predominant condition.  An evaluation in excess of 20 percent is not assignable for the period from January 1, 2012 to July 26, 2012, under this DC as there is no evidence of record establishing that the Veteran experiences any urinary retention requiring intermittent or continuous catheterization; any urinary tract infections; any daytime voiding interval less than one hour, or awakening to void five or more times per night; or voiding dysfunction requiring the wearing of absorbent materials which much be changed 2 to 4 times per day.  

The rating schedule is designed to accommodate changes in condition; therefore, the Veteran may be awarded a different evaluation in the future should his prostate cancer disability picture change.  See 38 C.F.R. § 4.1.  At present, however, the previously noted evaluation is the most appropriate given the evidence of record for the period from January 1, 2012 to July 26, 2012. 

Based on the previous finding, the Board concludes that the criteria for a disability evaluation in excess of 20 percent for genitourinary residuals of prostate cancer, from January 1, 2012 to July 26, 2012, are not met.  In reaching this conclusion, the Board considered the history of the disability at issue during the period in question and the effect the disability has on the Veteran's earning capacity.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2013).  

From July 27, 2012

The Veteran's assertions, considered in conjunction with pertinent medical documents of record, discussed below, establish that residuals of the Veteran's prostate cancer more nearly approximate the criteria for a 40 percent evaluation, since July 27, 2012.  Since then, genitourinary residuals of the Veteran's prostate cancer have included erectile dysfunction, urine leakage requiring the wearing of absorbent materials that must be changed several times daily, and voiding dysfunction resulting in three to four episodes of voiding nightly.  

During his hearing testimony, the Veteran described experiencing urine leakage after urinating.  The Veteran also reported that he went to the restroom more than 5 times a day.  Specifically, he noted that he went to the restroom between 5 and 7 times a day, and 5 to 6 times per night.  He denied needing to wear absorbent materials, but indicated that he wore toilet paper under his pants because if he did not he would leak through his pants.  The Veteran denied undergoing any additional treatment following his April 2009 surgery for his prostate cancer.  He also indicated that his private physician told him that there was incomplete emptying of his bladder when he urinated.  He noted that in the previous two years he had generally experienced the same type of urinary frequency and issues with urination related to his prostate cancer.  

In a July 2012 VA genitourinary examination, the Veteran was diagnosed with active prostate cancer since December 2008, for which he was treated with brachytherapy in April 2009.  The examiner observed that the Veteran had voiding dysfunction that caused urine leakage.  The Veteran reported that he used toilet paper in his shorts and spent extra time in the bathroom after voiding due to urine leakage.  He indicated that he had to leave work to go home and change his pants on two occasions in the previous 3 months.  The examiner noted that the Veteran's voiding dysfunction did not require the use of an appliance; however, it did cause increase urinary frequency in the form of daytime voiding interval of less than 1 hour and nighttime awakening to void 5 or more times.  The Veteran denied that his voiding dysfunction caused signs or symptoms of obstructed voiding, or a history of recurrent symptomatic urinary tract or kidney infections.  The examiner observed that the Veteran had erectile dysfunction related to his prostate cancer, but he did not have retrograde ejaculation, or any other residual condition and/or complication due to prostate cancer or treatment for prostate cancer.  Diagnostic test results revealed findings of PSA of 1.070 in September 2010, and PSA of 4.69 in February 2008.  The examiner noted that the Veteran's prostate cancer impacted his ability to work insofar as his need for frequent voiding and prolonged time in the bathroom to prevent urine leakage, and his having to leave work to change his pants due to leaking urine, cause moderate effect on physical and sedentary employment.  

A prostate cancer examination report, dated in August 2012 reflects that the July 2012 examination report was inaccurate because the Veteran's prostate cancer was in the watchful waiting phase and not the active phase.  An addendum report, dated in September 2012, also shows findings that the Veteran's prostate cancer was in remission.  The examiner observed that patients having PSA bounce are more likely to have biochemical failure, and a PSA bounce of greater than 1.4 ng/mL has been associated with biochemical failure, metastases and prostate cancer death.  The examiner noted that Phoenix definition required the PSA level to rise by 2 ng/mL before treatment failure was declared.  The examiner concluded that the Veteran's lab work showed only an increase of 0.342 ng/mL, not consistent with a worrisome bounce or a failure.  The examiner noted that if future lab work showed a continuing increase the Veteran should apply for reconsideration.  

Genitourinary symptoms this severe warrant the assignment of a 40 percent schedular evaluation under DC 7528 based on voiding dysfunction, the predominant condition.  An evaluation in excess of 40 percent is not assignable for the period since July 27, 2012, under this DC as there is no evidence of record establishing that the Veteran changes his absorbent materials more than four times daily or has any renal dysfunction or any urinary tract infections.  

As noted, the rating schedule is designed to accommodate changes in condition; therefore, the Veteran may be awarded a different evaluation in the future should his prostate cancer disability picture change.  See 38 C.F.R. § 4.1.   At present, however, the previously noted evaluation is the most appropriate given the evidence of record.  

Based on the previous finding, the Board concludes that the criteria for a disability evaluation in excess of 40 percent for genitourinary residuals of prostate cancer, from July 27, 2012, are not met.  In reaching this conclusion, the Board considered the history of the disability at issue for the applicable time period as well as the effect the disability has on the Veteran's earning capacity.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2013).  

In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim for an increased rating for his residuals of prostate cancer for both periods of the appeal in question, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).  

Extra-schedular Considerations

The Board has also considered whether the Veteran's hypertension, PTSD, and/or residuals of prostate cancer present exceptional or unusual disability pictures as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings are warranted.  See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  

Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology for his hypertension, PTSD and residuals of prostate cancer, and provide for consideration of greater disability and symptoms than currently shown by the evidence.  It is noted that the symptoms listed in the rating criteria for PTSD and the residuals of prostate cancer are demonstrative and not exhaustive; thus, the rating criteria actually consider many other psychiatric and genitourinary symptoms.  See Mauerhan, 16 Vet. App. 436; see also 38 C.F.R. § 4.130.  Overall, the occupational and social impairment caused by the Veteran's hypertension, PTSD, and/or residuals of prostate cancer, as described above, are accounted for by the rating criteria. Thus, the assigned schedular evaluation is adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extra-schedular consideration is not warranted.  

As a final matter, the Board notes that under Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board must remand an increased rating issue if the Veteran, or the evidence of record, raises the issue of unemployability due to service-connected disabilities, as inextricably intertwined with the issue of entitlement to total disability rated based on individual unemployability due to service-connected disabilities (hereinafter "TDIU").  However, the record reflects that the Veteran is currently employed; hence any development or consideration under Rice is rendered moot.  


ORDER

An initial compensable disability evaluation for hypertension is denied.  

A disability evaluation of 70 percent, and no more, is granted for PTSD, for the entire period of the appeal, subject to the regulations controlling disbursement of VA monetary benefits.  

A disability evaluation in excess of 20 percent, for the period from January 1, 2012 to July 26, 2012, is denied.  

A disability evaluation in excess of 40 percent, for the period from July 27, 2012, is denied.  



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs