Citation Nr: 1751855	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  11-18 910	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an effective date earlier than April 24, 2009, for the grant of service connection for ischemic heart disease with minimal cardiomegaly.

2.  Entitlement to a disability rating in excess of 30 percent for ischemic heart disease with minimal cardiomegaly.

3.  Entitlement to a disability rating in excess of 20 percent for hypertension.

4.  Entitlement to a compensable disability rating for bilateral hearing loss.

5.  Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) for the period on appeal prior to June 12, 2012, and in excess of 50 percent for the period on appeal from June 12, 2012.

6.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. C. Wilson, Associate Counsel


INTRODUCTION

The Veteran had active service from March 1970 to November 1971, which includes service in the Republic of Vietnam.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions that were issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, in June 2010 and July 2011.  In August 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

In this decision, the Board grants an initial schedular rating of 70 percent for PTSD.  The issues of the Veteran's entitlement to an initial schedular rating in excess of 70 percent for PTSD and his entitlement to a 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.  During his August 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that a withdrawal of his claims concerning his hypertension, heart, and hearing loss disabilities is requested.

2.  The Veteran's psychiatric symptoms result in at least occupational and social impairment with deficiencies in most areas.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the Veteran's claims concerning his hypertension, heart, and hearing loss disabilities have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2.  The criteria for an initial disability rating of at least 70 percent for PTSD have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Withdrawal of Claims

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105 (2012).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.  In the present case, the Veteran withdrew his appeal as to claims concerning his hypertension, heart, and hearing loss disabilities, and hence, there remain no allegations of errors of fact or law for appellate consideration of these issues.  Accordingly, the Board does not have jurisdiction to review these matters and the appeal is dismissed as to these issues.  The Board acknowledges that, under Hanson v. Brown, 9 Vet. App. 29 (1996), the claims no longer exist.

II.  Claim for a Higher Initial Rating for PTSD

By way of background, the RO granted service connection for PTSD in a June 2010 rating decision and assigned a rating of 30 percent, effective May 5, 2008.  Thereafter, in November 2012, his rating was increased to 50 percent, effective June 12, 2012.

Disability ratings are determined by applying the rating criteria set forth in VA's schedule for rating disabilities and represent the average impairment of earning capacity.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10 (2017).

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability.  38 C.F.R. §§ 4.1, 4.2 (2017); see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7 (2017).  Otherwise, the lower rating is assigned.  Id.  In reviewing the evidence, the Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).

When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual's capacity for adjustment during periods of remission must be considered.  38 C.F.R. § 4.126(a) (2017).  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.

The General Rating Formula for Mental Disorders, which is set forth in 38 C.F.R. § 4.130, provides in pertinent part:
		
A 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent evaluation is warranted where there is 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 evaluation is warranted where 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 worklike setting); inability to establish and maintain effective relationships.

A 100 percent evaluation is warranted where 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; memory loss for names of close relatives, own occupation, or own name.

VA regulations provide that signs and symptoms of a nonservice-connected condition must be attributed to the service-connected condition when it is not possible to separate the effects of the conditions.  38 C.F.R. § 3.102 (2017); Mittleider v. West, 11 Vet. App. 181 (1998).  Accordingly, the Board will attribute the effects of any nonservice-connected psychiatric conditions to his service-connected psychiatric disability where it is not possible to separate the symptoms.

A VA psychologist who examined the Veteran in April 2010 documented diagnoses of PTSD, depression not otherwise specified (NOS), and alcohol abuse in partial remission.  The examiner noted that the Veteran did not report suicidal intent at that time and has not made any attempts, but reported that the Veteran has had suicidal ideation since he served in Vietnam.

Upon examination in June 2012, diagnoses of PTSD, recurrent major depressive disorder (MDD), and alcohol abuse were documented; and an examiner attributed the Veteran's morbid ideation and feelings of worthlessness to his MDD.  Similarly, the examiner who evaluated the Veteran in February 2014 noted that symptoms of the Veteran's persistent depressive disorder include suicidal ideation.  The Board notes, however, that VA treatment records document reports of intermittent suicidal ideation within the context of the Veteran's PTSD diagnosis.

Suicidal ideation was reported again during the Veteran's August 2017 Board hearing.  He also testified that he experiences mood swings, demonstrates violent behavior three or four times per month, and has a past history of violence.  He has some contact with his children and also interacts with his current wife, mother, and brother.  However, he reported that he forgets to groom himself, indicated that his forgetfulness affects his ability to manage his medications, and reported having daily anxiety with panic attacks that occur twice per week, sometimes three times per week.  Additionally, he testified that he has experienced stress at work and previously reported that his psychiatric disability contributes to his inability to work.  See April 2013 Application for Increased Compensation Based on Unemployability (VA Form 21-8940).

Overall, review of the record indicates that the Veteran's psychiatric disorder has been productive of symptoms such as suicidal ideation, near-continuous panic and depression, some memory deficits, sleep impairment, and impaired impulse control with frequent periods of violence.

After looking to the frequency, severity, and duration of the Veteran's impairment to assess his disability picture, the Board finds that the preponderance of evidence demonstrates that disability due to the Veteran's psychiatric disorder has approximated the schedular criteria for an initial rating of 70 percent.  See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013).  In so finding, the Board notes that the United States Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation.  See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.").  Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports an initial 70 percent disability rating for the Veteran's PTSD.


ORDER

The Veteran's appeal regarding claims for an earlier effective date for the grant of service connection for a heart disability and increased ratings for his heart, hypertension, and hearing loss disabilities is dismissed.

Subject to the law and regulations governing payment of monetary benefits, an initial rating of at least 70 percent for PTSD is granted.


REMAND

As acknowledged previously, the Veteran's entitlement to an initial rating in excess of 70 percent for PTSD and a TDIU remain before the Board.

Generally, VA is required to assist the Veteran in obtaining evidence necessary to support his claim.  See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017).  Thus, because the claims file indicates that there are outstanding records of the Veteran's ongoing treatment at the Austin Vet Center and the Veteran testified that he is in receipt of disability benefits from the Social Security Administration (SSA), the Board finds that any outstanding Vet Center records and any medical records and determinations that have been associated with the Veteran's SSA file must be obtained on remand.  See June 2009 Statement In Support of Claim (VA Form 21-4138); July 2013 Deferred Rating Decision (VA Form 21-6789); August 2017 Board hearing transcript, p. 11.

Additionally, although the Veteran reported in April 2013 that he stopped working in 2012 due to his PTSD and additional service-connected disabilities, the report of his February 2014 PTSD examination indicates that he was working at his friend's mechanic shop at that time.  See April 2013 Application for Increased Compensation Based on Unemployability (VA Form 21-8940); see also February 2014 VA PTSD Disability Benefits Questionnaire.  Thus, the Board finds that the issue of the Veteran's entitlement to a TDIU must be remanded pending clarification of the his work history by way of an updated VA Form 21-8940 or other correspondence documenting the dates of the Veteran's employment.

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.  Make reasonable efforts to obtain the following: (1) medical treatment records and determinations associated with the Veteran's claim for benefits from the Social Security Administration; and (2) records of the Veteran's treatment at the Austin Vet Center.  If any of the requested records are not available, the claims folder must indicate this fact.  Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file.

2.  Give the Veteran an opportunity to clarify his work history and submit an updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to his claim for a TDIU.

3.  Readjudicate the claims on appeal.  If the benefits sought on appeal are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity for the Veteran to respond.

The Veteran 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).





______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs