Citation Nr: 1751595 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 11-27 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD) with polysubstance dependence. 2. Entitlement to service connection for hypertension, to include as due to herbicide exposure, and to include as secondary to PTSD. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel INTRODUCTION The Veteran is served on active duty in the U.S. Army from December 1966 to November 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated January 2011 and September 2015 of the Department of Veterans Affairs (VA) Regional Offices (RO) in Atlanta, Georgia and Columbia, South Carolina, respectively. Jurisdiction is currently with the Columbia, South Carolina RO. The January 2011 rating decision denied service connection, in part, for hypertension, and denied an increased evaluation in excess of 50 percent disabling for PTSD. In September 2015, the RO increased the Veteran's disability rating to 70 percent disabling for the Veteran's PTSD, effective December 23, 2009, the date of receipt of his claim. As the maximum benefit was not granted, the issues remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In the Veteran's substantive appeal, the Veteran initially requested a travel-board hearing, but later withdrew his request and agreed to an informal conference with the RO. This matter was previously before the Board in October 2016 and was remanded for further development. All requested development has been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's PTSD has not manifested to a degree of total occupational and social impairment. 2. The Veteran's hypertension was not caused by or aggravated by his PTSD. 3. There is no medical evidence linking the Veteran's hypertension to his active duty service, to include herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2016). 2. The criteria for entitlement to service connection for hypertension, to include as due to herbicide exposure and secondary to service-connected PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has complied with the duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increased Rating for PTSD Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2016). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2016). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2016). Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2016). Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's PTSD has been evaluated as 70 percent disabling for the period on appeal under Diagnostic Code 9411. Diagnostic Code 9411 uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016). Under the General Rating Formula, a 70 percent evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016). The maximum schedular rating of 100 percent is warranted when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016). In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a) (2016). The rating agency shall assign an evaluation based on all 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. However, 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 on the basis of social impairment. 38 C.F.R. § 4.126(b) (2016). Use of the term "such symptoms as" in § 4.130 indicates that the list of symptoms that follows is "non-exhaustive," meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir.2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because "[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology," and because the plain language of the regulation makes clear that "the veteran's impairment must be 'due to' those symptoms," a veteran "may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 116 - 17. In this case, the Veteran contends that his service-connected PTSD warrants a higher disability rating. After a review of the evidence of record, the Board finds that an increased evaluation higher than 70 percent disabling is not warranted at any time during the appeal period. The evidence of record shows that the Veteran's PTSD does not render him totally occupational or socially impaired, nor is there evidence that suggests a severity, frequency or duration of symptoms that equate to total occupational and social impairment. The evidence shows that throughout the period on appeal, the Veteran has consistently denied hallucinations, feelings of hopelessness, and suicidal ideations, except for a January 2010 incident involving his hospital admission. In said admission, the Veteran was admitted to a medical facility for suicidal ideation after his medications had been changed. The Veteran explained that he visited a doctor for an enlarged aorta where he was given medication to counter act that condition, and subsequently visited a VA medical center where his medications were changed again. The Veteran indicated that the change in medications caused him to isolate, become irritable, and have suicidal ideations. The Veteran was hospitalized for four days and discharged. A review of the evidence shows that the January 2010 hospital admission was an isolated incident and only resulted due to a change in the Veteran's medication. Additionally, subsequent medical visits in February 2010 and April 2010, following his hospital admission, reveal a denial by the Veteran of PTSD symptoms, depressive symptoms, hallucinations, and suicidal/homicidal ideations. Moreover, during those appointments, the Veteran and his examiners' all noted that the Veteran's mood was stable. The Veteran explained that his medications were back on track and that "I'm doing fine now." He further reported improved sleep with a decrease in nightmares; however, he acknowledged that he continues to isolate himself most of the day and that he has had difficulty making friends. The examiner noted that the Veteran's affect/mood was brighter, he was more animated and talkative, and that he smiled throughout session. Further, other evidence of record shows that the Veteran's PTSD symptoms have increased and decreased throughout the appeal period; but, they have never increased to a level of total social and occupational impairment. For example, in the Veteran's October 2010 VA examination, the Veteran reported having PTSD symptoms of sleep disturbance, mood disturbance, nightmares, anxiety, panic attacks, anger, irritability, social avoidance, and trouble concentrating; however, the examiner found that the Veteran's symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks, which is indicative of a 30 percent disability rating. Additionally, the Veteran subsequently tested negative for PTSD in November 2010. Alternatively, the examiner in the Veteran's April 2012 VA examination found that the Veteran had occupational and social impairment with deficiencies in most areas indicative of a 70 percent disability rating. Similarly, in February 2013, the Veteran reported having flashbacks/nightmares and depression and tested positive for PTSD and depression; however, the positive screenings and reported symptoms did not equate to total social or occupational impairment. Although the Veteran reported having flashbacks/nightmares and depression, the Veteran continued to deny hallucinations, irritability, and suicidal/homicidal ideations. He further reported not having seen a psychiatrist since August 2011 and that he was not taking his psychotropic medications at the time. Despite the Veteran's lack of mental health treatment, including not taking his psychotropic medications, the examiner found that the Veteran's mood was "pretty good", affect was mildly constricted, his short and long term memory was intact, and that he had no behavior/psychomotor activity. In contrast with the increased PTSD symptoms the Veteran experienced in his April 2012 VA examination and February 2013 appointment mentioned above, the evidence shows that the Veteran's PTSD symptoms have not declined since 2013. In September 2013, the Veteran reported no hallucinations, no suicidal/homicidal ideations, no nightmares or flashbacks, and that he gets out of the house daily. Additionally, in a July 2015 Social Work Consultation, the examiner noted that the Veteran had not received any mental health treatment since 2013, and subsequently in November 2015, the Veteran tested negative for PTSD. Moreover, as recent as December 2016, a VA examination revealed that the Veteran reported that he was not currently receiving mental health treatment due to the driving distance, and that he has isolation and nightmares, only on a rare occasion. As a result of the examination, the examiner found that the Veteran exhibited occupational and social impairment with reduced reliability and productivity indicative of a 50 percent disability rating. The Board notes that socially, the Veteran has reported being a loner and that he isolates himself; however, he also noted that he attends football games, goes fishing, goes to the casino, plays cards with friends, and that he engages with friends once per week. See October 2010 Mental Health Note, November 2010 Social Work E & M Note, and December 2016 VA Examination. Occupationally, the Veteran noted that he worked until he was 62, and that his unemployment is not due primarily to the effects of a mental condition, but rather an injury to his right shoulder. See October 2010 VA examination. The Board recognizes that the Veteran is currently rated as 70 percent disabling for his entire appeal period; however, after a review of the evidence of record, the Board finds that the symptoms exhibited by the Veteran during his entire appeal period varied in severity, but never rose to the level of total occupational and social impairment, and did not display the listed criteria for a 100 percent rating. Therefore, a 100 percent rating is not warranted at any time during the appeal period. The Board is unable to distinguish a time during the period of appeal when the symptoms equated in frequency, duration or severity to total occupational and social impairment. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016). As such, the Board finds that the preponderance of the evidence is against the Veteran's claim for a higher disability rating. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for an increased rating for PTSD is denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for Hypertension Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (a) (2016). 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. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, secondary service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). The Veteran contends that his hypertension began during or is related to his active duty service due to herbicide exposure, or as secondary to his service-connected PTSD. The Board notes that herbicide exposure has been conceded in this case. For service connection to be warranted, the Veteran must show that his current hypertension disorder is causally related to his active duty service, whether due to herbicide exposure or otherwise. Similarly, for secondary service connection, the Veteran must show that his PTSD disorder caused or aggravated his hypertension. The Board notes that the Veteran has a current diagnosis of hypertension; however, service treatment records, and post-service treatment records dated within one year of separation, are silent for complaints or findings related to hypertension. The Veteran's post-service treatment records show that the Veteran's hypertension had multiple instances of being controlled and uncontrolled for various reasons such as the combination and/or types of medication regimen used by the Veteran, the Veteran having a lack of medication, and at times when the Veteran experienced pain for other medical issues. There is no evidence of record to suggest that the Veteran's hypertension, whether controlled or uncontrolled, was caused or aggravated by his exposure to herbicides or to PTSD. In December 2016, a medical opinion was obtained supporting this notion. In the medical opinion, the examiner noted that there was "limited or suggestive" evidence of an association between herbicide exposure and hypertension noted in the National Academy of Science (NAS) Institute of Medicine's (IOM's) Veterans and Agent Orange: Update 2010. However, after a review of the NAS Update 2012, the examiner determined that the Veteran's exposure to herbicides did not cause the Veteran's hypertension condition. The examiner noted that that while there is suggestive evidence, the studies performed have limited scientific value for different reasons, including results which were not of statistical value, or results for chemicals which were similar to dioxin, but not related to dioxin exposure. The examiner expounded by noting, in part, that studies have shown a wide range of results, in that some Veteran studies have reported an increased incidence of hypertension, while others have found no increase, and that two other studies suggested a possible association between serum concentration of dioxin-like compounds and elevated blood pressure. As a result, the examiner noted that NAS reaffirmed its decision to place hypertension in "limited or suggestive evidence of an association" category which they define as: "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Moreover, the examiner further noted that the Veteran's significant family history of hypertension coupled with his age at onset, with the earliest documented age of hypertension being 57 and over 30 years after discharge. The history is felt to be most consistent with Benign Essential Hypertension related to genetic and environmental risk factors rather than Agent Orange exposure. Likewise, the examiner found that the Veteran's PTSD did not cause or aggravate the Veteran's hypertension condition. The examiner explained that the most current evidence related to hypertension and PTSD show there is an increased prevalence of hypertension in patients with PTSD; however, there is no definitive causative link that has been established and a biochemical pathway has not been identified for a causative association to be assigned to PTSD in the case of hypertension. The examiner further noted that it has not been identified if there is a threshold for PTSD symptom severity that has to be met for there to be a biochemical release which results in hypertension, or if this occurs at any level. In short, the examiner concluded that there is no medical evidence to support a finding that the Veteran's PTSD caused or aggravated his hypertension. As a result of the above, the Board finds that the medical evidence is the most probative evidence of record as it relates to the etiology of the Veteran's hypertension. The medical opinion is credible and persuasive, supported with an extensive medical rationale, and supporting medical literature. There is no other evidence of record that can account for the etiology of the Veteran's hypertension, nor has the Veteran asserted or shown the requisite expertise to opine on such a complicated medical question. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, based on the most probative evidence of record, the Board finds that secondary service connection is not warranted as the evidence is against a finding that the Veteran's hypertension was caused by or aggravated by his PTSD. Likewise, service connection is not warranted on a direct basis. As mentioned previously, the Veteran's STRs are silent as to any complaints, treatment, or diagnoses relating to the Veteran's hypertension while in service. Additionally, the most probative medical evidence of record negates a finding of a causal relationship between the Veteran's current hypertension condition and his in-service exposure to herbicides. Therefore, without a medical nexus relating the Veteran's current hypertension condition to his in-service exposure to herbicides or any other in-service event or injury, service connection on a direct basis is not warranted. Accordingly, the claim is denied. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased disability rating in excess of 70 percent for PTSD is denied. Entitlement to service connection for hypertension, to include as due to herbicide exposure, and to include as secondary to PTSD is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs