Citation Nr: 1754036	
Decision Date: 11/27/17    Archive Date: 12/07/17

DOCKET NO.  13-25 826	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for a lung disorder, to include left thoracostomy, status post left pneumothorax, cavernous lung lesion, fibrosis, asthma, pneumonia, emphysema, and chronic obstructive pulmonary disease (COPD), on a direct basis or as secondary to herbicide exposure.

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


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. D. Deane, Counsel


INTRODUCTION

The Veteran served on active duty from June 1966 to June 1968, with service in Vietnam from January 1967 to January 1968.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered in May 2012 and August 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In November 2015, the Veteran testified before the undersigned at a Travel Board hearing held at the RO.  

In February 2016, the Board remanded these matters for additional development.

The issues of entitlement to service connection for a lung disorder and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

During the appeal period, the Veteran's service-connected PTSD was manifested by no more than occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking, or mood.
CONCLUSION OF LAW

The criteria for the assignment of an initial evaluation of 70 percent, but no higher, 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 FINDING AND CONCLUSION

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions under the VCAA.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).  VA's duty to notify was satisfied by letters dated in March 2011, March 2012, and April 2012.  See also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

VA has obtained service treatment records, service personnel records, private treatment records, and VA treatment records.  It has afforded the Veteran the opportunity to present testimony, written statements, and evidence.  The Veteran was also repeatedly given the opportunity to submit, or authorize VA to request copies of private treatment records.  In addition, review of the November 2015 Board hearing transcript demonstrates that the undersigned complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010).  The Veteran was also afforded VA PTSD examinations in September 2011 and May 2016 that are adequate for rating purposes, as VA examiners took into account the Veteran's statements and treatment records, which allowed for fully-informed evaluations of his service-connected PTSD residuals during the appeal period.  

Based on a comprehensive review of the record, the Board finds substantial compliance with the February 2016 remand orders, to include obtaining VA treatment records as well as a VA examination report.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

The Veteran seeks an initial evaluation in excess of 50 percent for his service-connected PTSD for the time period from February 15, 2011, to the present.  Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Under 38 C.F.R. § 4.130, the general rating formula for mental disorders, to include PTSD (evaluated under Diagnostic Code 9411), is as follows:

A 50 percent evaluation is warranted 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 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; and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting 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. 

A 100 percent rating is not warranted unless 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 closes relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).

The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim.

In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Richard v. Brown, 9 Vet. App. 266, 267.  A GAF of 41 to 50 is defined as 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).  A GAF of 51 to 60 is defined as 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 peers or co-workers).

Collectively, the evidence of record, including VA and private treatment records as well as VA examination reports, reflected that the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking, or mood.  During the appeal period, the Veteran reported having homicidal ideation, suicidal ideation in the form of transient thoughts of death a few times a year, difficulty concentrating, nightmares with cold sweats, intrusive thoughts, extreme irritability with outbursts of anger (with little or no provocation), social isolation with significant distress in social situations, flashbacks, avoidance behaviors, paranoid delusions, impaired sleep and memory, exaggerated startle response, hypervigilance, markedly diminished interest or participation in significant activities, significant anxiety, and persistent inability to experience positive emotions. 

The September 2011 and May 2016 VA examiners found the Veteran showed improved sleep and mood in 2016 and was also noted to exhibit normal or appropriate hygiene, thought processes, intelligence, insight, judgment, and speech on mental status evaluation.  However, the Veteran was also shown to repeatedly endorse having a temper to the degree that he reported leaving the gun he was legally allowed to carry at home due to fear he would use it during an altercation and noted to continually be evaluated in the higher risk category for suicide prevention.  The May 2016 VA examiner also specifically commented that the Veteran's PTSD symptoms caused clinically significant impairment in social, occupational, or other areas of functioning.  Considering the evidence with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's PTSD meets the severity of occupational and social impairment contemplated for a 70 percent rating during the appeal period.

Nevertheless, the Board finds that the Veteran's PTSD symptoms do not more nearly approximate the criteria for the 100 percent evaluation.  Evidence of record clearly does not indicate that the Veteran's psychiatric symptomatology is productive of total social and occupational impairment.  The Board acknowledges that that the Veteran has reported being retired from his lifelong profession as a mechanical engineer since 2009.  Since that time, he reported having part-time employment driving for the railroad and repairing credit card machines.  During the May 2016 VA examination, he indicated that would like another job if he could find one that met his physical needs.  Psychiatric findings of record during this time period are also reflective of significant but not total social impairment.  The Veteran indicated that he was maintaining contact with his family and remained married to his third spouse.  Evidence of record during the appeal period showed that reported suicidal ideation, homicidal ideation, and delusions were not persistent, that he was able to maintain minimal personal grooming, that he had only mildly impaired, immediate memory, and that he was oriented with coherent thought processes. 

The Veteran's overall disability does not more nearly approximate a 100 percent rating.  Evidence of record during this time period does not indicate that the Veteran has exhibited 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 closes relatives, own occupation, or own name. 

The Board has also considered the Veteran's assigned GAF scores ranging from 50 to 60 during the appeal period.   The assigned GAF scores contemplate moderate to serious symptomatology and substantial but not total impairment in social and occupational functioning.  Thus, in addition to the specific symptomatology discussed above, the Board finds that the reported GAF scores do not support the assignment of a 100 percent rating during the appeal period. 

The Board is cognizant that the Veteran is competent to attest to things he experiences through his senses, such as anxiety, anger, irritability, isolation, avoidance behaviors, and depressed mood.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The statements from the Veteran and his family members are competent evidence to report his increased psychiatric symptoms because this requires only personal knowledge as it comes to them through their senses.  Layno v. Brown, 6 Vet. App. 465, 469, 470 (1994).  The Veteran is also credible in his belief that he is entitled to an increased evaluation for his service-connected PTSD.  However, the more probative evidence of record does not indicate that the assignment of an initial evaluation in excess of 70 percent is warranted.  In so finding, the Board notes that it weighed the lay and medical evidence and finds more probative opinions rendered by VA medical professionals given their expertise in evaluating psychiatric disorders.

Based on the foregoing discussion, evidence of record showed no distinct periods of time during the appeal period when the Veteran's service-connected PTSD varied to such an extent that a rating greater or less than the 70 percent rating currently assigned would be warranted.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the assignment of an initial evaluation in excess of 70 percent for PTSD, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Finally, the Board will not address whether referral for an extraschedular rating is warranted, as neither the Veteran nor his representative has raised that matter and it has also not been reasonably raised by the evidence of record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017).  


ORDER

Entitlement to an initial evaluation of 70 percent for PTSD is granted, subject to the controlling regulations applicable to the payment of monetary benefits.


REMAND

Due to the inadequate nature of the findings contained in prior July 2015 and May 2016 VA medical opinions, the Board will not proceed with final adjudication of the remaining matter on appeal until a supplemental VA medical opinion is provided, in order to clarify the etiology of the Veteran's claimed lung disorders.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Evidence of record further reflects that the Veteran received VA medical treatment for his claimed lung disorders from Mountain Home VAMC, to include recent inpatient treatment for bilateral pneumonia in October 2017.  As evidence of record only includes treatment records dated up to August 2017 from that facility, all pertinent VA treatment records should be obtained and properly associated with the record.  Bell v. Derwinski, 2 Vet. App. 611 (1992)

Finally, the Board is cognizant that the Veteran, in August 2017,  indicated that he wanted to take the issue of entitlement to a TDIU "off the table" to avoid further delays and that the AOJ then withdrew that issue on appeal.  However, based on the conditional nature of the Veteran's August 2017 statement, his assertions that he was not employable due to physical limitations brought on herbicide exposure, the recent grant of a 70 percent evaluation for his service-connected PTSD, and the pending development concerning the service connection claim for a lung disorder secondary to herbicide exposure on appeal, the Board will defer adjudication of the TDIU claim at this time.  See generally Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following actions:

1.   Obtain updated VA treatment records pertaining to the Veteran's claimed lung disorders from Mountain Home VAMC for the period from August 2017 to the present and associate them with the file.

2.  Thereafter, schedule the Veteran for a VA medical opinion from an appropriate examiner (who did not draft the prior July 2015 and May 2016 VA examination reports/medical opinions and who is preferably a physician), to clarify whether the Veteran's claimed lung disorder is causally related to his active military service.  The electronic claims file must be made available to the examiner, and the examiner must specify in the medical opinion that the electronic claims file has been reviewed.  A VA examination should be provided if deemed necessary by the examiner.  

Based on a review of the evidence of record and with consideration of the Veteran's statements, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the any currently or previously diagnosed lung disorders, including left thoracostomy, status post left pneumothorax, cavernous lung lesion removed in 1997, fibrosis, asthma, pneumonia, emphysema, and COPD, is causally related to the Veteran's active military service, to include documented in-service complaints of shortness of breath and diffuse wheezing as well as presumed in-service herbicide exposure.  

For purposes of this opinion request, the examiner must be informed that because no lung disorder was clinically noted upon the Veteran's entry into military service, the examiner is to ignore any evidence of a pre-existing disability and is to presume that the Veteran did not have any lung disorder prior to military service.  In addition, while the May 2016 VA examiner clearly provided an effective opinion that none of the Veteran's diagnosed lung disorders were one of the applicable diseases warranting presumptive service connection for Agent Orange, the Board has determined that the evidence of record does not adequately address whether any of the Veteran's lung disorders diagnosed post-service were causally related to events during his military service or any incident therein, to include conceded herbicide exposure.  The examiner is reminded that VA regulations do not preclude the Veteran from establishing service connection for his diagnosed lung disorders with proof of actual direct causation.  

In so doing, the examiner must discuss and acknowledge the complaints and findings in the service treatment records of shortness of breath and diffuse wheezing; the post-service VA treatment records (particularly the notations from the Veteran's VA primary care physician dated in September 2016 and July 2017 that the Veteran's severe COPD was surprising considering his lack of toxic hobbies and workplace exposures); the medical treatise evidence submitted by the Veteran discussing a relationship between herbicide exposure and COPD; and VA examination reports with medical opinions dated in July 2015 and May 2016.

A complete explanation for all opinions must be provided.  The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim.  38 C.F.R. § 3.655 (2017).

3. Contact the Veteran and clarify whether he wishes to continue the appeal of entitlement to a TDIU, and then take appropriate development and adjudication action as warranted.

4.  After completing the above actions, the claims on appeal must be readjudicated, taking into consideration all relevant evidence associated with the evidence of record since the August 2017 SSOC.  If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.


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).

These claims 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. §§ 5109B, 7112 (2012).



______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs