Citation Nr: 1605120 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 14-04 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial rating for service-connected post-traumatic stress disorder (PTSD), currently rated as 30 percent disabling. 2. Entitlement to an initial compensable rating for service-connected bilateral hearing loss. 3. Entitlement to service connection for a heart disability, to include as secondary to service-connected disabilities. 4. Entitlement to service connection for morbid obesity, to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Michael J. Kelley, Attorney WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD S. Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to October 1968, with service in the Republic of Vietnam. His medals include the Bronze Star Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2012 and June 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Veteran testified before the undersigned Veterans Law Judge in September 2015. A transcript of that hearing is associated with the claims file. The Board recognizes that the United States Court of Appeals for Veterans Claims (Court) has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities exists as part of a claim for an increase rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In Locklear v. Shinseki, the Court distinguished the instant case from Rice and recognized that VA's Secretary had the authority to specifically separate the adjudication of the schedular disability rating from the adjudication of entitlement to TDIU. The Court held that "[b]ifurcation of a claim generally is within the Secretary's discretion." See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011). Here, an October 2014 rating decision granted entitlement to TDIU, effective July 1, 2013. The Veteran has not submitted a notice of disagreement as to the assigned effective date. Moreover, during the September 2015 Board hearing, the representative noted that the Veteran was not challenging the rating decision. Thus, the Board does not have jurisdiction over the claim as the claim of entitlement to TDIU was separately adjudicated and has not been perfected for appellate review. In this decision, the Board grants at least a 50 percent disability rating for service-connected PTSD. The issues of entitlement to a disability rating in excess of 50 percent for PTSD and entitlement to a compensable disability rating for bilateral hearing loss, as well as service connection for heart disability and morbid obesity, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the appeal, the Veteran's PTSD has been manifested by at least occupational and social impairment with reduced reliability and productivity due to symptoms such as social isolation, hypersomnia, irritability, depressed mood and anxiety. CONCLUSION OF LAW Throughout the appeal, the criteria for a rating of at least 50 percent for PTSD have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. § 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130 (2015). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2015). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). Acquired psychiatric disorders are evaluated under a general rating formula for mental disorders. A 30 percent rating is warranted where there is an 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, or mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted where there is an 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted 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 that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike 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 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. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Veteran contends that his PTSD has been more severe than currently evaluated and that he is entitled to a higher rating. The Veteran was afforded VA examinations in October 2010 and March 2012. The Veteran and his wife reported symptoms that included mood swings and a quick temper. They also noted that he was startled easily by sounds of airplanes. The examiners noted pervasive dysphoria, hypersomnia, low energy level, social withdrawal, irritability, and psychomotor retardation. The October 2010 VA examination report described the Veteran's symptoms as mild to moderate. During the September 2015 hearing, the Veteran's wife testified that he does not want to get out of bed, does not want to socialize, does not want to communicate, and that he avoids confrontation. She also noted that his concentration can be affected and that he becomes anxious when he hears a helicopter. The Veteran's wife is competent to testify as to the Veteran's symptoms that she observed. Also, her testimony is credible as she provided a consistent reporting of symptoms to the October 2010 VA examiner. The Board finds that the Veteran's PTSD symptoms, to include his social isolation and irritability, have resulted in social and occupational impairment with reduced reliability and productivity and are characteristic of at least a 50 percent rating. The Veteran's disability picture, taken as a whole and in combination with the objective evidence of record, have more nearly approximated the criteria for at least a 50 percent rating throughout the appeal. To this extent, the appeal is granted. ORDER Effective March 18, 2008, entitlement to at least a 50 percent rating for PTSD is granted, subject to the applicable criteria governing the payment of monetary benefits. REMAND As to entitlement to an evaluation in excess of 50 percent for PTSD, the Veteran testified during the September 2015 Board hearing that his PTSD symptoms have worsened since his last VA examination, which was conducted in March 2012. The Veteran also testified during the hearing that his hearing loss disability has worsened since his last VA examination, which was conducted in May 2013. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected psychiatric and hearing loss disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, these claims must be remanded. The Veteran contends that he has a heart condition and morbid obesity that are related to his service-connected disabilities. Specifically, the Veteran contends that he has a heart condition that is caused or aggravated by his service-connected diabetes mellitus and the associated complications. In the alternative, he contends that he drank heavily due to his service-connected PTSD and that his past alcohol use caused or aggravated his heart condition. It appears that the Veteran also contends that his morbid obesity is either caused by or aggravated by his service-connected disabilities. The Veteran was afforded a VA examination for his heart condition in May 2013. However, the examiner did not provide a nexus opinion regarding the etiology of the Veteran's diagnosed heart condition. As such, upon remand, the RO should afford the Veteran appropriate VA examinations. An appropriate examiner should address whether the Veteran's past alcohol abuse is at least as likely as not caused or aggravated by his service-connected PTSD. An appropriate examiner should then address whether the Veteran's alcohol abuse at least as likely as not caused or aggravated a diagnosed heart condition. An appropriate examiner should also discuss whether the Veteran's heart condition or morbid obesity is caused or aggravated by his service-connected diabetes and the associated complications, as well as any associated medication. Accordingly, the case is REMANDED for the following action: 1. Associate outstanding pertinent VA treatment records dated since January 2014 with the claims file. 2. Afford the Veteran an additional opportunity to submit any other information that is not evidenced by the current record. Provide the Veteran with the necessary authorizations for the release of any private treatment records not currently on file. Associate any available records with the claims file. 3. Invite the Veteran to submit medical and hospitalization records, medical statements, and any other lay or medical evidence from himself and from other individuals who have first-hand knowledge of the nature, extent, and severity of his psychiatric symptoms and his hearing loss disability, as well as the nature and onset of his heart condition and morbid obesity. 4. Schedule the Veteran for a VA hearing loss examination to determine the current nature and severity of his service-connected hearing loss. In addition to objective test results, including audiometric test results and the Maryland CNC, the examiner should describe the functional effects caused by the hearing disability in his or her final report. 5. Schedule the Veteran for a VA psychiatric examination to determine the nature, extent and severity of his psychiatric disability. The claims file must be made available to and reviewed by the examiner. All tests deemed appropriate by the examiner should be performed. The examiner should report all pertinent findings and comment on the Veteran's occupational and social impairment. The examiner should also opine as to whether the Veteran's past alcohol use is at least as likely as not caused or aggravated by his service-connected PTSD. The examiner should consider the Veteran's testimony that his service in Vietnam caused him to drink and that he used alcohol to alleviate his PTSD symptoms. 6. Then, after obtaining an opinion regarding the etiology of the Veteran's alcohol use, schedule him for a VA heart examination to determine the nature, onset, and etiology of any diagnosed heart condition found to be present. After conducting any appropriate tests deemed necessary, the examiner should diagnose the Veteran's heart disorder(s). Then, the examiner should opinion as to: (A) whether it is at least as likely as not that the Veteran's diagnosed heart disorder(s) and morbid obesity are related to service, to include exposure to herbicides. (B) whether the Veteran's alcohol abuse at least as likely as not caused or aggravated a heart condition. (C) whether it is at least as likely as not that the Veteran's heart disorder(s) or morbid obesity are caused or aggravated by his service-connected diabetes and the associated complications, as well as any associated medication. The examiner should review the Veteran's treatment records, to include the records from Miriam Hospital in his Social Security Administration records associated with the claims file. 7. Then readjudicate the appeal. The AOJ should consider the evidence submitted since the January 2014 statement of the case, to include the Social Security Administration records. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs