Citation Nr: 1750189 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 12-21 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and substance abuse disorder. 2. Entitlement to service connection for a disability of multiple joints, including the hands, shoulders, knees, hips, and fingers, to include as due to an undiagnosed illness. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a thoracolumbar spine disability. 5. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his spouse, and cousin. ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from April 1987 to November 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran, his spouse, and his cousin testified before a Veterans Law Judge (VLJ) at a videoconference hearing in January 2013. The VLJ who conducted the January 2013 hearing is no longer employed by the Board. The Veteran was informed in a June 2017 letter that the VLJ who conducted the previous hearing is no longer available to participate in the adjudication of his claim. He was also provided the opportunity to request a new hearing in accordance with 38 C.F.R. § 20.707 and 20.717 (2017), but responded in September 2017 that he did not wish to appear at another hearing. The Board will therefore proceed with a decision in this case. In December 2014, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for additional appellate action. When the case was before the Board in December 2014, the issues on appeal included entitlement to service connection for ingrown toenails, headaches, and polysubstance abuse as secondary to service-connected PTSD. Service connection for these disabilities was awarded in an April 2016 rating decision. The award of service connection constitutes a full grant of the benefits sought on appeal and these claims are no longer before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for a joint disability, thoracolumbar spine disability, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's PTSD and substance abuse disorder most nearly approximate deficiencies in most areas of work, school, family relationships, thinking, judgment, and mood without total occupational and social impairment. 2. Hypertension was not manifested within one year from the Veteran's discharge from service and is not the result of a disease or injury in service, to include any exposures associated with the Veteran's active duty service in Southwest Asia. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for PTSD and substance abuse disorder are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 2. Hypertension was not incurred in or aggravated by active service, nor may its incurrence or aggravation be presumed. 38 U.S.C.A. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increased Rating Claim Service connection for PTSD was awarded in the July 2011 rating decision on appeal and an initial 10 percent evaluation was assigned effective July 19, 2010. Increased 50 percent and 70 percent ratings were assigned in June 2012 and April 2016 decisions, respectively, effective from the original date of service connection. Thus, the Veteran's PTSD is currently rated as 70 percent disabling from July 19, 2010. The April 2016 rating decision also recharacterized the Veteran's psychiatric disorder to include a substance abuse disorder. The Veteran contends that an increased rating is warranted as his PTSD and substance abuse disorder, now in remission, affect all aspects of his life and causes total occupational and social impairment. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD and substance disorder are currently rated under Diagnostic Code 9411 as 70 percent disabling, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the general rating formula, a 70 percent evaluation is warranted if the veteran exhibits: 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 actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A maximum 100 percent evaluation 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. Id. After review of the evidence, the Board finds that an initial rating in excess of 70 percent is not warranted for the Veteran's PTSD and substance abuse disorder. The disability manifests symptoms such as excessive anger and controlling behavior, chronic sleep impairment with nightmares and insomnia, hypervigilance, social isolation, anxiety, and impaired impulse control. The record does not indicate the presence of any of the specific symptoms identified in the criteria for a total 100 percent rating. The Veteran's thought processes and ability to communicate were intact throughout the claims period and he attended individual and family therapy at the Leavenworth and Kansas City VA Medical Centers (VAMCs) since May 2011. Treatment records from these facilities show that the Veteran has never endorsed hallucinations or delusions, active suicidal or homicidal ideation, or an inability to perform the activities of daily living. The Veteran reported an incident of passive thoughts of death in January 2015 during a VA therapy session and was found to manifest suicidal ideation at a February 2015 VA examination, but he has consistently denied experiencing active suicidal ideation throughout the claims period. None of the treating or examining mental health providers have found that the Veteran was at risk of hurting himself, and while the Veteran has injured others in the past, there is no evidence that he has reacted with violence during the claims period. It is therefore clear that he does not manifest gross impairment to thought processes or communication, a persistent danger of hurting himself or others, or an inability to perform daily activities. Furthermore, the overall severity of the Veteran's service-connected psychiatric disorder has not most nearly approximated total occupational and social impairment. With respect to the Veteran's occupational impairment, the evidence establishes that he continued to work or attend school throughout much of the claims period. VAMC treatment records and Social Security Administration (SSA) records show that the Veteran worked fulltime as a carpenter and painter until approximately August 2013 when his job as a painter at the VA was terminated. In February 2014, the Veteran reported to his VA orthopedist that he was in process of switching careers and was in school fulltime for heating, ventilation, and air conditioning (HVAC). The Veteran also reported in October 2014 that he was self-employed and performing minor construction work. Although it appears the Veteran is not currently employed, the Veteran's history of at least occasional work and schooling establishes that he does not experience total occupational impairment. Similarly, his statements that he is unable to perform any work due to an inability to get along with other employees is inconsistent with the findings of the September 2010, April 2011, and February 2015 VA examiners, who found that he did not manifest total occupational impairment due to psychiatric symptoms. The Board finds that the conclusions of the medical professionals based on objective testing and examination are more probative regarding the impact and manifestations of the Veteran's psychiatric disorder than the Veteran's lay statements provided in the context of a claim for compensation. The Veteran has also not manifested total social impairment. While the evidence shows significant social impairment, the Board cannot find that the impairment most nearly approximates total. The Veteran and his family members testified in January 2013 that he experiences mood swings, has a poor relationship with his children, and often fights with his spouse. Treatment records from the Veteran's VAMC therapy sessions also clearly show that the Veteran is prone to self-isolation, controlling behavior, and outbursts of anger when interacting with others. The September 2015 VA examiner noted that the Veteran recognized the need for friendships outside his family, but was unable to make meaningful connections with others due to mistrust and paranoia. However, the Veteran has remained married throughout the claims period and is active in his local church, working as a volunteer minister. The February 2015 VA examiner also observed that the Veteran's faith and spirituality were an asset and played a vital role in his mental health. Therefore, the Board finds that the Veteran does not manifest total social impairment due to service-connected PTSD with a substance disorder. In conclusion, the preponderance of the evidence is against a finding that the severity of the Veteran's symptoms is contemplated by a 100 percent rating. The Veteran manifests significant symptoms associated with PTSD and his substance abuse disorder (in remission), but he does not manifest any of the specific criteria contemplated by a total schedular rating or symptoms of similar severity, frequency, and duration at any time during the claims period. Vazquez-Claudio v. Shinseki, 713 F.3d 112(Fed. Cir. 2013). The Veteran has maintained his marriage and church work, and maintained employment and schooling at various times throughout the claims period. The most recent VA examination in February 2015 demonstrated significant psychiatric symptoms including an inability to establish and maintain effective relationships and difficulty adapting to stressful situations in a work environment; however, these manifestations are contemplated by the currently assigned 70 percent evaluation. The Veteran has never manifested symptoms that are of similar severity, frequency, and duration as those considered by a 100 percent evaluation, to include total occupational and social impairment. The Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for an increased rating. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Service Connection Claim The Veteran contends that service connection is warranted for hypertension as it was incurred due to environmental exposures he encountered while serving on active duty in Southwest Asia. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). The record establishes a current disability. Post-service treatment records document diagnoses and treatment for hypertension dated throughout the claims period and the diagnosis was confirmed upon VA examination in May 2011. An in-service injury is also demonstrated. The Veteran served in the Southwest Asia theater of operations and was treated on multiple occasions for skin rashes and hives associated with exposure to an unknown substance. During a July 2001 Persian Gulf examination at the VAMC, the Veteran was noted to have been exposed to smoke, fumes, petrochemical fumes, and other substances while in the Persian Gulf. These exposures are consistent with the circumstances of the Veteran's active duty service and the Board therefore finds that an in-service injury is established. Regarding the third element of service connection, a nexus between the Veteran's hypertension and service, service records do not support the claim. Service records do not document any complaints or treatment related to the Veteran's blood pressure and his blood pressure was normal (120/74) at the June 1991 separation examination. It is clear that no chronic disabilities were diagnosed during service, and the Veteran specifically denied a history of blood pressure abnormalities on the June 1991 separation report of medical history. Post-service medical records also do not support the claim. There is no evidence of hypertension until 2000, almost a decade after active duty, when the Veteran's blood pressure was elevated while receiving psychiatric treatment at a private hospital. In December 2000, when the Veteran was an inpatient for depression, his blood pressure was elevated and measured at 140/78. This apparently prompted the examining physician to re-take the measurements and additional readings of 132/59 and 138/80 were notated. These readings do not meet the requirements for a diagnosis of hypertension, and the presence of hypertension was not confirmed until August 2008 when a diagnosis of hypertension was included in the Veteran's VAMC initial primary care examination. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (defining hypertension as diastolic blood pressure predominantly 90 mmHg or greater and isolated systolic hypertension as systolic blood pressure predominantly 160 mmHg or greater with a diastolic blood pressure of less than 90 mmHg.). Although the Veteran testified in January 2013 that he was first diagnosed with hypertension in 2000 at a private hospital, he dated the onset of hypertension to 2006 during a May 2011 VA examination and has clearly not provided a reliable history regarding when hypertension was first identified. The August 2008 VA primary care physician noted a two year history of hypertension which dates the onset of the condition to approximately 2006-which is consistent with the history provided by the Veteran to May 2011 VA examiner. The Board therefore finds that hypertension was first diagnosed in approximately 2006, 15 years after the Veteran's separation from active duty service. Service connection is possible for hypertension on a presumptive basis as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309, but the condition must manifest to a compensable degree within one year of separation. The absence of any clinical evidence for many years after service weighs the evidence against a finding that the Veteran's hypertension was present in service or the year immediately after. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran also does not content that hypertension was present in service or in the year immediately after his discharge. Therefore, service connection on a presumptive basis is not warranted for hypertension. The Board also notes that there is no competent medical evidence in support of the claims. No competent medical provider has provided an opinion in favor of service connection for the Veteran's hypertension. The May 2011 VA examiner found that the hypertension was of unknown etiology and none of the Veteran's treating physicians has indicated that any link exists between the Veteran's hypertension and active duty service. The Board has considered the Veteran's statements that his hypertension is due to service exposures, but as a lay person, he is not competent to provide an opinion regarding medical etiology. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007). Service connection is possible for hypertension under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, in this case, the Veteran has not reported experiencing continuous symptoms of hypertension or elevated blood pressure since service. In sum, the competent evidence of record establishes that the Veteran's hypertension had its onset many years after active duty service. The weight of the evidence is also clearly against a nexus between the claimed disability and any incident of active duty service, to include exposures associated with the Veteran's active duty service in Southwest Asia. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection and it is denied. ORDER Entitlement to an initial rating in excess of 70 percent for PTSD and a substance abuse disorder is denied. Entitlement to service connection for hypertension is denied. REMAND The Veteran contends that service connection is warranted for a disability manifested by pain in multiple joints as it was incurred due to active military service in Southwest Asia. Service records establish that the Veteran has a qualifying period of service under 38 U.S.C.A. § 3.317 and the criteria for compensation for certain disabilities for Persian Gulf veterans are for application. The Veteran contends that he experiences pain and swelling in the hands, shoulders, knees, hips, and fingers. A VA examination was provided in February 2015 and clinical diagnoses were provided with respect to the Veteran's complaints involving the right shoulder and left hand and fingers. The examiner noted that physical examination of the bilateral knees and hips was normal with no objective or radiologic evidence to support a diagnosis, though the Veteran's hip complaints were attributed to a low back condition. The examiner did not address the Veteran's contentions with respect to the left shoulder or right hand and fingers. The Board finds that an addendum medical opinion is necessary to determine whether the Veteran's complaints of pain and swelling in the knees, hips, left shoulder, and right hand/fingers are manifestations of an undiagnosed illness associated with his Southwest Asia service, especially in light of the applicability of 38 C.F.R. § 3.317(a)(2)(i)(A). Therefore, the claims file must be returned to the February 2015 VA examiner for an addendum medical opinion addressing whether the Veteran has an undiagnosed illness. Additionally, a remand is also required with respect to the claim for entitlement to service connection for a thoracolumbar spine disability. This claim (filed as separate thoracic and lumbar spine disabilities) was denied in an April 2015 rating decision. The Veteran filed a notice of disagreement in May 2015, but has not yet received a statement of the case (SOC). The record does not reflect whether the RO has acknowledged the Veteran's initiation of an appeal, and a remand is therefore necessary to provide a SOC addressing the claim for entitlement to service connection for a thoracolumbar disability. See Manlincon v. West, 12 Vet. App. 238 (1999). Finally, the Veteran has also raised a claim for entitlement to a TDIU as part of his increased rating claim under Rice v. Shinseki, 22 Vet. App. 447 (2009). In April 2016, the VA Appeals Management Center (AMC) referred a claim for entitlement to TDIU to the AOJ for appropriate notice and development. The record before the Board does not show that the AOJ has explicitly adjudicated the claim for TDIU and the Veteran would be prejudiced if the Board were to decide this claim without prior adjudication by the AOJ. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Moreover, the claim for TDIU is inextricably intertwined with the pending claims remanded in this decision. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request that the Veteran submit a properly completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Return the claims file to the VA examiner who performed the February 2015 VA examination of the Veteran's joints. If this examiner is unavailable, provide the claims file to a VA examiner with the appropriate expertise to determine the nature and etiology of the claimed joint disorder. After reviewing the complete claims file, the examiner should provide an addendum medical opinion addressing: a) Whether the Veteran's complaints of pain and swelling in the right hand and fingers, the knees, left shoulder, and the hips are manifestations of an undiagnosed illness associated with his active duty service in Southwest Asia. The February 2015 VA examiner found that the Veteran manifested diagnosed illnesses of the right shoulder and left hand/fingers. The examiner also attributed the Veteran's hip pain to a low back disability and noted that there was no objective or radiologic evidence to support a diagnosis of a bilateral knee or hip condition. However, the examiner did not comment on whether the Veteran's reported signs and symptoms in the right hand/fingers, left shoulder, knees, and hips are manifestations of an undiagnosed illness. b) If the examiner determines that the Veteran has diagnosed illnesses of the right hand/fingers, left shoulder, knees, and/or hips, the examiner should determine whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the disabilities are etiologically related to any incident of active duty service, to include the Veteran's physical training and service in Southwest Asia. A full explanation must accompany the medical opinions provided by the examiner. 3. Issue a SOC addressing the claim of entitlement to service connection for a thoracolumbar disability. If the Veteran perfects the appeal, return the claim to the Board. 4. Then, readjudicate the other claims on appeal, including the claim for entitlement to TDIU, before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs