Citation Nr: 1756797	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  12-33 681A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for hypertension.  

2.  Entitlement to service connection for renal insufficiency.  

3.  Entitlement to a compensable rating for bilateral hearing loss prior to September 24, 2015, a rating in excess of 10 percent from that date; and a rating in excess of 30 percent from December 5, 2016.  

4.  Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder.  

5.  Entitlement to total disability for individual unemployability (TDIU).  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

E. Miller, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from June 1965 to May 1968, with service in the Republic of Vietnam and the award of the Bronze Star Medal.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2016, October 2016, and January 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (hereinafter Agency of Original Jurisdiction (AOJ)).  

In July 2017 the Veteran testified at a videoconference hearing with the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is associated with the claims file.  

Prior to certification of this appeal, in a January 2017 rating decision, the RO granted the Veteran's claim of entitlement to service connection for tinnitus and right ear hearing loss.  There is no longer an issue of fact or law before the Board pertaining to whether service connection for tinnitus and right ear hearing loss is warranted.  38 U.S.C. §§ 511, 7104, 7105 (West 2014); 38 C.F.R. § 20.101, 20.204 (2017).  

The issues of service connection for hypertension and renal insufficiency 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.  At worst, the Veteran has level I hearing loss bilaterally prior to September 24, 2015; Level III hearing loss in the right ear, and level IV hearing loss in the left ear from September 24, 2015; and Level V hearing loss bilaterally from December 5, 2016.  

2.  The Veteran's service-connected PTSD is manifested by psychiatric symptoms such as sleep impairment, nightmares, difficulty concentrating, irritability, anger management issues, hypervigilance, and difficulty in maintaining social relationships, causing occupational and social impairment with reduced reliability and productivity, but not deficiencies in most areas, or total occupational and social impairment.  


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable evaluation for bilateral hearing loss prior to September 24, 2015; a rating in excess of 10 percent from September 24, 2015; and in excess of 30 percent from December 5, 2016, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2017).  

2.  The criteria for an increased evaluation for PTSD in excess of 50 percent have not been met.  38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. § 4.126, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  

II.  Increased rating  

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155 (West 2014); 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.

If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings are sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2017).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  

	a.  Bilateral hearing loss 

The Veteran is currently assigned a noncompensable evaluation for his service-connected bilateral hearing loss prior to September 24, 2015, a rating of 10 percent from that date, and 30 percent from December 5, 2016, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100.  

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.   

VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests.  The vertical line in Table VI represents 9 categories of the percentage of discrimination based on a controlled speech discrimination test.  The horizontal columns in Table VI represent 9 categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.  The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity.  For example, if the better ear had a numeric designation of Level V and the poorer ear had a numeric designation of Level VII, the percentage evaluation is 30 percent.  See 38 C.F.R. § 4.85 (includes Tables VI, VIa, and VII).  

In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results a VA audiologist must describe the functional effects caused by a hearing disability in his or her final report.  The Court also noted, however, that, even if an audiologist's description of the functional effects of a veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  Id.   

Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be evaluated to the next higher Roman numeral.  

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to any higher evaluations for bilateral hearing loss.  

An August 2011 VA audiological examination documented pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
20
45
50
75
48
LEFT
15
50
65
80
53

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear.  With respect to the functional impact of his hearing loss disability, the Veteran reported his greatest difficulty was understanding conversion. 

The audiometric findings from the August 2011 VA audiological examination equates to Level I hearing loss in the right ear and Level I hearing loss in the left ear.  See 38 C.F.R. § 4.85, Table VI.  When those values are applied to Table VII, it is apparent that the currently assigned noncompensable evaluation for the Veteran's bilateral hearing loss prior to September 24, 2015 is accurate and appropriately reflects his bilateral hearing loss under the provisions of 38 C.F.R. § 4.85.  

The Veteran was afforded a VA examination on September 24, 2015.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
35
50
55
80
55
LEFT
35
50
65
80
58

Speech audiometry was performed using CIDW-22 test, and not the Maryland CNC test.  VA regulations require that the Maryland CNC test be utilized for speech discrimination testing.  38 C.F.R. § 4.85(a).  The Board is not able to evaluate the Veteran's claim for increased rating for bilateral hearing loss using a standard other than found in the VA regulations.  If the Veteran's hearing loss were evaluated solely on the basis of puretone thresholds under Table VIa, the hearing loss in the right ear equates to a Level III, and in the left ear to Level IV.  See 38 C.F.R. § 4.85, Table VIa.  When those values are applied to Table VII, it equates to a 10 percent disability rating under the provisions of 38 C.F.R. § 4.85.  As there is no other audiological testing evidence prior to December 5, 2016 which supports a compensable rating for the Veteran's bilateral hearing loss and the Veteran has already been afforded a new VA audiological examination, the Board will not disturb the RO's more favorable assignment of 10 percent for Veteran's bilateral hearing loss from September 24, 2015 to December 4, 2016.  38 C.F.R. § 4.3.  

The Veteran was afforded a VA audiological examination on December 5, 2016 which documented pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
55
65
65
80
66.25
LEFT
55
65
75
80
68.75

Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 62 percent in the left ear.  The Veteran described the impact of his hearing loss noting that he had trouble hearing, even with his hearing aids, had the television turned up so loud that his wife had to leave the room, and difficulty hearing at church.  

The audiometric findings from the December 2016 VA audiological examination equate to Level IV hearing loss in the right ear and Level VII hearing loss in the left ear.  See 38 C.F.R. § 4.85, Table VI.  When those values are applied to Table VII, it equates to a 20 percent disability rating.  

The Veteran's hearing loss results from December 2016 also qualify for evaluation under table VIa, due to values over 55 decibels in each of the four specified frequencies.  38 C.F.R. § 4.86.  The audiometric findings from the December 2016 VA audiological examination equate to Level V hearing loss bilaterally under Table VIa.  See 38 C.F.R. § 4.85, Table VIa.  When those values are applied to Table VII, it equates to a 20 percent disability rating.  The currently assigned disability evaluation of 30 percent is more favorable to the Veteran than the results of the provisions under 38 C.F.R. § 4.85 or § 4.86.  As such, the Board will not disturb these findings assigned by the RO.  38 C.F.R. § 4.3.  

The Board has also considered the Veteran and his wife's statements regarding his hearing loss and the functional effects of the disability including difficulty hearing others.  Nevertheless, the assigned noncompensable evaluation is consistent with the mechanical application of the rating schedule to the numeric designations assigned based on the audiometric evaluations performed, and this evaluation is based on the current VA law and regulations in effect for evaluating this disability.  Lendenmann, supra; Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017).  

Therefore, the Board finds that the weight of the evidence is against an initial compensable evaluation for bilateral hearing loss, a rating in excess of 10 percent from September 24, 2015, or in excess of 30 percent from December 5, 2016.  As such, the benefit-of-the-doubt rule does not apply, and the claim is denied.  Gilbert, 1 Vet. App. 49 (1990).  

	b.  PTSD  

Mental disorders are evaluated under the general rating formula for mental disorders, a specific rating formula presented under 38 C.F.R. § 4.130.  In addition, the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed within 38 C.F.R. § 4.130. 

However, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5).  See 79 Fed. Reg. 45,094 (August 4, 2014).  VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014.  See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015).  In the present case, the Veteran applied for service connection for PTSD in April 2016, consequently, the RO certified the Veteran's appeal to the Board in February 2017, which is after August 4, 2014.  Thus, the version of 38 C.F.R. § 4.125 conforming to the DSM-5 is applicable in the present case.  In any event, the Board will still consider any private or VA examiner's discussion of both the DSM-IV and DSM-5 in adjudicating the current Veteran's PTSD claim, in order to provide the Veteran with every benefit of the doubt.  

When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered.  38 C.F.R. § 4.126(a).  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.  38 C.F.R. § 4.126(a).  When evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

As provided by the General Rating Formula, a 50 percent rating is assigned when 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.  38 C.F.R. § 4.130.  

A 70 percent rating is in order 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.  Id.

A 100 percent rating is in order 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.  Id. 

A veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating.  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Rather, the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating.  Id.  In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation.  Mauerhan, 16 Vet. App. at 442.

The Federal Circuit has clarified that the General Rating Formula for Mental Disorders requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency, or duration, but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013).  The Federal Circuit endorsed an approach whereby the Board would identify the symptoms associated with the service-connected mental health disability, determine whether they are of the kind enumerated in the regulation, and if so, assess whether they result in the level of occupational and social impairment specified by a particular rating.  Id.  The 50 percent disability rating regulation, in particular, contemplates initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with reduced reliability and productivity.  Id.  Reading §§ 4.126 and 4.130 together, it is evident that the "frequency, severity, and duration" of a veteran's symptoms must play an important role in determining his disability level.  Id. at 117.  

The Veteran's service-connected PTSD is currently assigned a 50 percent evaluation pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 from April 19, 2016.  The Veteran filed a notice of disagreement with the initial rating of 50 percent for PTSD in November 2016 after the RO issued a statement of the case in October 2016.  

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the current 50 percent evaluation for PTSD is appropriate under Diagnostic Code 9411.  38 C.F.R. § 4.7.  That is, the Veteran's service-connected PTSD is manifested by psychiatric symptoms causing occupational and social impairment with reduced reliability and productivity which are indicative of the 50 percent rating criteria.  See 38 C.F.R. § 4.130.  The Board has also considered additional, similar symptomatology not specifically addressed in the 50 percent criteria under the General Rating Formula, but causing the appropriate level of occupational and social impairment for a 50 percent rating, under the General Rating Formula.  See again Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  

The evidence of record supports a 50 percent rating for PTSD for the appeal period.  In making this determination, the Board has reviewed both the medical and lay evidence of record, including the lay statements from the Veteran and his wife; VA and other treatment records; and the VA examination dated June 2016 with addendum opinion of September 2016.  

The Veteran was afforded a VA psychiatric examination in June 2016.  The examiner noted that the Veteran arrived properly groomed and dressed with good judgment and insight.  Knowledge of current President and Vice President of the United States was correct, and ability to do basic mental calculations and spelling was intact.  The Veteran drove to the appointment and denied problems with driving.  The examiner diagnosed PTSD under the criteria for DSM-5 and chose the box pertaining to symptoms manifesting in occupational and social impairment with occasional decrease in work efficiency, equating to a 30 percent disability rating.  The examiner included a lengthy biographic and occupational history of the Veteran's life in which the Veteran denied physical or verbal altercations during his years of employment, which included sensitive locations such as nuclear power plants.  The Veteran denied suicide attempts or psychiatric hospitalizations as well as arrests, convictions, incarcerations, or physical assaults or fighting.  The examiner noted flattened affect, depressed mood, chronic sleep impairment, anxiety, and hypervigilance as some of the Veteran's symptoms relating to PTSD.  The Veteran stated he avoids death, for example he will not attend funerals.  The Veteran reported a good marriage to his wife of 48 years and good relationships with his children and grandchildren, whom he sees regularly.  The Veteran reported having friends from church, school, and the Army, who he sees weekly.  The Veteran participates in social activities like attending church, deer hunting, and searching for arrowheads.  

In September 2016 the VA psychiatric examiner provided an addendum opinion elaborating on the Veteran's PTSD as it would relate to employment.  The examiner noted that the Veteran stated he got along well with others on the job when he was employed.  Although the Veteran reported an increase in irritability, he denied that it had affected his past job performance.   The Veteran denied a history of physically acting out in anger.  The examiner opined that the Veteran would likely function well in a job in which he was able to work alone and was not dependent on coworkers for assistance to complete job tasks.  The examiner noted that due to decreased memory performance and attention or concentration issues, the Veteran may experience reduced efficiency or accuracy of job performance.  As to the Veteran's hyperarousal to loud noises, the examiner opined that, as with past work at construction sites, once the Veteran acclimated to the environment and typical noises, he should have no significant problems on the job.  Although the Veteran reported sleep impairment and could suffer from fatigue due to that, he reported no tardiness or absences on the job when employed previously.  

In the November 2016 notice of disagreement, the Veteran stated that he is angry, irritable, and hypervigilant, i.e. checking the doors and windows all the time.  The Veteran also stated that he keeps a "gun laying where I can get my hands on it at a moments notice."  [sic].  The Veteran stated he had to leave his job because it became "so difficult" to "deal with supervisors and co-workers."  However, his treatment records note regularly asked questions pertaining to suicidal ideations and he has regularly denied any through of suicide.  On the contrary, a recent March 2017 suicide risk assessment notes that the Veteran denied ever having thoughts of suicide and no prior suicide attempts or access to firearms or other lethal means.  The March 2017 provider noted that there no discrepancy in the current assessment and 2 prior risk screens.  

At the July 2017 hearing, the Veteran reported nightmares about Vietnam, to include accidentally biting his wife while they slept in response to perceived actions by actors in his nightmare.  The Veteran reported he was not on medication for PTSD and he was attending talk therapy once a week.  He reported getting angry, while driving for example.  The Veteran also reported he hears things at night.  Associating with anyone he referred to as an "outsider," i.e. not in the family or church, is something the Veteran avoids.  

In summary, consideration of the above psychiatric symptoms and circumstances reflects occupational and social impairment with reduced reliability and productivity that is indicative of a 50 percent rating.  See 38 C.F.R. § 4.130.  

However, the Veteran does not meet the criteria for a higher 70 percent evaluation for his service-connected PTSD.  38 C.F.R. § 4.7.  That is, the medical and lay evidence of record is not indicative of someone with psychiatric symptomatology causing occupational and social impairment, with deficiencies in most areas, which is required for the 70 percent rating.  38 C.F.R. § 4.130.  

In particular, the Board finds that the Veteran does not have social impairment with deficiencies in most areas as contemplated by a schedular 70 percent evaluation.  See 38 C.F.R. § 4.130.  In this regard, the Board notes that the Veteran has a reportedly good relationship with his wife of 48 years, and good relations with some friends, his children and grandchildren, whom he sees regularly.  Thus, he can still maintain some relationships.  Moreover, the Board notes that the 50 percent evaluation he now has for PTSD encompasses a difficulty in establishing and maintaining effective relationships.  The Veteran reports to his medical appointments in a state of good personal hygiene and alert.  He has not reported suicidal or homicidal ideation.  His judgment and abstract thinking capabilities are not impaired.  The Veteran reports some memory impairment and difficulty navigating in a car, although in his VA examination he denied having difficulty driving.  In short, the medical or lay evidence of record reveals the Veteran's symptoms more closely match the 50 percent disability rating for PTSD.  

With regard to occupational impairment, the Board acknowledges that the Veteran reported working full time until 2013, at which point he reported in multiple instances that he retired.   In prior records, he reported working full time for sensitive employers such as a nuclear power plant which required a drug-free and generally responsible lifestyle.  Although the Veteran reported he had to stop work because he didn't get along with supervisors or other workers, he has reported at other times that he retired voluntarily after many years of working and generally got along well with coworkers.  This goes against a finding of occupational impairment with deficiencies in most areas.  

Accordingly, the Board finds that the evidence does not support an increased disability rating in excess of 50 percent for the Veteran's service-connected PTSD.  38 C.F.R. § 4.3, 4.130.  




ORDER

Entitlement to a compensable rating for bilateral hearing loss prior to September 24, 2015 is denied.  

Entitlement to a rating in excess of 10 percent for bilateral hearing loss from September 24, 2015 is denied.  

Entitlement to a rating in excess of 30 percent for bilateral hearing loss from December 5, 2016 is denied.  

Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder is denied.  


REMAND

Upon review of the record, the Board concludes that further evidentiary development is necessary.  Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate process and assistance in developing his claim prior to final adjudication.  

The Veteran has been diagnosed with both hypertension, for which he has been taking medication for several years, and renal insufficiency.  It does not appear from the record that the Veteran has been afforded a VA medical examination pertaining to these two disabilities.  

The Veteran's service treatment records (STRs) include the Veteran's separation examination dated January 23, 1968 which documents a blood pressure reading of 126/100.  There is additional notation regarding three-day readings for blood pressure which were "normal."  The most recent statement of the case (SOC) dated October 2016 does not discuss this blood pressure reading which is relevant to the Veteran's claim for entitlement to service connection for hypertension.  

There is a disability benefits questionnaire dated from 2015 for heart disability which notes that both hypertension and renal insufficiency are "related" to the Veteran's service-connected ischemic heart disease.  

The Veteran also submitted a private medical opinion dated March 2016 linking both hypertension and renal insufficiency to the Veteran's exposure to Agent Orange in Vietnam.  

With respect to the claims for service connection, VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability, the record indicates that the disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim.  See 38 U.S.C. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4) (2017).  The evidentiary requirement that the record indicates that the claimed disability may be associated with active service is a "low threshold."  McLendon, 20 Vet. App. at 83.  On remand, the Veteran should be afforded a VA examination related to his claims for hypertension and renal insufficiency and their relationship, if any, to his military service, to herbicide agent exposure, or to other service-connected disabilities.   

The claim of entitlement to TDIU is inextricably intertwined with the claim for service connection being remanded.  Accordingly, adjudication of the TDIU claim is deferred pending adjudication of the claims for service connection being remanded.

Accordingly, the case is REMANDED for the following action:

1.  With the assistance of the Veteran, identify and obtain any outstanding medical treatment records.  

2.  Schedule the Veteran for a VA hypertension examination.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.  

For any hypertension or hypertensive disorder diagnosis made, the examiner should discuss the following in his or her opinion:

(a)  The findings on the Veteran's separation examination dated 23 JAN 1968 which indicate a blood pressure reading of 126/100 and notations regarding additional blood pressure testing;

(b)  The opinion from a private medical doctor dated March 2016 indicating that there is a possible relationship between the Veteran's hypertension and renal insufficiency and the Veteran's exposure to Agent Orange in Vietnam;

(c)  The disability benefits questionnaire from 2015 indicating that hypertension and renal insufficiency are related to the Veteran's service-connected ischemic heart disease; 

(d)  Answer the following questions: 

(i)  Is it at least as likely as not (i.e. 50 percent probability) that the hypertensive disorder(s) was caused by the Veteran's active service;

(ii) Is it at least as likely as not (i.e. 50 percent probability) that the hypertensive disorder(s) was caused or aggravated by the any of the Veteran's other service-connected conditions.  If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's hypertensive disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability or disabilities; 

(iii)  Is it at least as likely as not (i.e. 50 percent probability) that the hypertensive disorder(s) was caused by exposure to Agent Orange or other herbicide agents?

The examiner is specifically asked to reconcile previous diagnoses, discussions, reports, and treatments, of hypertensive disability symptoms or conditions in the medical record.  

The examiner must provide all findings, along with a complete rationale for his or her opinions, in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion.  

3.  Schedule the Veteran for a VA renal examination.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.  

For any renal disorder diagnosis made, the examiner should discuss the following in his or her opinion:

(a)  The opinion from a private medical doctor dated March 2016 indicating that there is a possible relationship between the Veteran's hypertension and renal insufficiency and the Veteran's exposure to Agent Orange in Vietnam;

(b)  The disability benefits questionnaire from 2015 indicating that hypertension and renal insufficiency are related to the Veteran's service-connected ischemic heart disease; 

(c)  Answer the following questions: 

(i)  Is it at least as likely as not (i.e. 50 percent probability) that the renal disorder(s) was caused by the Veteran's active service;

(ii) Is it at least as likely as not (i.e. 50 percent probability) that the renal disorder(s) was caused or aggravated by the any of the Veteran's other service-connected conditions.  If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's renal disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability or disabilities; 

(iii)  Is it at least as likely as not (i.e. 50 percent probability) that the renal disorder(s) was caused by exposure to Agent Orange or other herbicide agents?

The examiner is specifically asked to reconcile previous diagnoses, discussions, reports, and treatments, of renal disability symptoms or conditions in the medical record.  

The examiner must provide all findings, along with a complete rationale for his or her opinions, in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion.  

The appellant has the right to submit additional evidence and argument on the matter or 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).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs