Citation Nr: 1800202 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-06 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hypertension as secondary to the service- connected disability of diabetes mellitus, type II. 2. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability rating based on individual unemployability due service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD P. Mays, Associate Counsel INTRODUCTION The Veteran served in the United States Army from June 1967 to June 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran appeared and testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in September 2017. A copy of the transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The most probative evidence of record indicates that the Veteran's hypertension was caused by his service-connected diabetes mellitus, type II. 2. For the entire appeal period, the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas, such as judgment, thinking, and mood; total occupational and social impairment has not been shown. 3. The Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension as secondary to his service- connected diabetes mellitus, type II have been met. 38 U.S.C. §§ 1110, 1111, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.159, 3.310 (2017). 2. The criteria for an initial 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2017). 3. A TDIU is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duty to notify was satisfied by letters dated November 2009 and June 2011. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's post-service medical treatment records, including VA treatment records and private treatment records, have been obtained to the extent they were both identified and available. The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). More specifically, a VA examination must be conducted when the evidence of record does not reflect the current state of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2017). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. In the instant case, the Veteran was provided VA examinations in March 2010 and February 2016 for his PTSD. The VA examinations are adequate because they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they describe his PTSD in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Based on the foregoing, the Board concludes that VA has complied with its duty to assist the Veteran in establishing his claim. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (2012); 38 C.F.R. § 3.303 (2017). In this case, the Veteran's contention is that his hypertension developed as a result of his service-connected diabetes mellitus, type II. Service connection may be granted on a secondary basis 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, 448 (1995) (en banc); Wallin v. West, 11 Vet. App. 509 (1998). Reasonable doubt is resolved in favor of the claimant when there is an approximate balance of positive and negative evidence. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has hypertension and is service-connected for diabetes mellitus. The first and second elements of a secondary service connection claim are met. Wallin, 11 Vet. App. at 512. In a VA examination in March 2010, the examiner concluded that the Veteran's hypertension was not related to his diabetes. He opined that "the [V]eteran states as far as he can recall, he was diagnosed with hypertension approximately the same time as being diagnosed with diabetes mellitus and was also asymptomatic at the time." Relying on the Veteran's recollection of events, the examiner reasoned that the Veteran's hypertensive vascular disease was less likely than not related to his diabetes mellitus, since they were diagnosed at the same time, and because the Veteran showed normal renal functions and a normal microalbumin level. The Veteran received independent medical opinions from his private physician, Dr. T. P., where he was seen regularly, regarding his hypertension. In June 2009, Dr. T. P. stated that the Veteran has had diabetes type II for approximately eight years and that he subsequently developed hypertension "in good part due to his underlying diabetes mellitus." In an April 2011 report, his physician stated: Mr. [REDACTED] is a long standing patient of myself. I see him on a three to four times a year basis... I had dictated a letter to the Veteran's Administration in the past giving my medical opinion that Mr. [REDACTED] hypertension is a consequence of his diabetic renal disease... Mr. [REDACTED] hypertension was diagnosed after his diabetes. Lack of laboratory evidence of renal disease does not indicate lack of microvascular renal disease, which can induce hypertension.... Overall, it is my medical opinion that certainly more likely than not that Mr. [REDACTED]... hypertension [and other ailments]...are all consequences of his diabetes mellitus, specifically, they are microvascular as well as macrovascular complications. Where medical opinions conflict, the Board may favor one opinion over another. See D'Aries v. Peake, 22 Vet. App. 97, 107 (2008). Factors to be considered in weighing the value of opinions include the medical expert's personal examination of the patient, as well as the physician's knowledge and skill in analyzing data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). In the instant case, Dr. T. P. was more familiar with the Veteran's disability picture. His private physician was well knowledgeable of the Veteran's history. Moreover, the physician's opinion is thorough and well-reasoned, which is another factor to be considered in determining the probative value of an opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). By contrast, the VA examiner proffered an opinion based solely on the Veteran recollection with respect to when he developed hypertension. Thus, the VA examiner merely drew a conclusion that the hypertension was not related to diabetes, because the disabilities were incurred at the same time. Given these facts, the VA examiner's opinion and is entitled to less probative weight than the private opinion. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Consequently, with a higher probative value given to the opinions of Dr. T. P., and resolving doubt in the Veteran's favor, the Board finds that the Veteran's hypertension is related to his service-connected diabetes mellitus. Secondary service connection for this disorder is warranted. 38 C.F.R. § 3.310 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Increased Rating The Veteran's service-connected PTSD is currently rated as 50 percent disabling as of November 5, 2009. He contends, and the Board agrees, based on 38 C.F.R. 4.130, that he is entitled to a higher disability rating. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. §1155 (2012); 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in November 2009. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD symptoms are rated under DC 9411. See 38 C.F.R. § 4.130. All psychiatric disabilities are evaluated under the General Rating Formula for Mental Disorders, under which a 50 percent rating is warranted for a mental disorder 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. A 70 percent rating is warranted for a mental disorder 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted for a mental disorder 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.). For disabilities classified under 38 C.F.R § 4.130, mental disorders, it is required that diagnoses conform with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (5th ed.) (DSM-5), in categorizing mental disabilities. As the case was certified to the Board in August 2017, the DSM-5 controls with regard to diagnosis. However, during the appeal period, the Diagnostic and Statistical Manual Of Mental Disorders, (4th ed. 1994) (DSM- IV) was standard of care and used by the Veteran's treatment providers. The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. During the appeal period, the Veteran's GAF scores ranged from 49 at worst, to 55 at best. A 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 (1996) (citing DSM-IV at 32). Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). Therefore, where applicable, GAF scores will be addressed as relevant evidence. Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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 v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment associated with the DC to determine whether an increased evaluation is warranted. The Veteran was diagnosed with PTSD in November 2009. At that time, he complained of difficulty sleeping and nightmares two to three times a week. He also described feelings of depression, hopelessness, lack of interest, and motivation. He was diagnosed with bereavement, PTSD, and polysubstance dependence and referred to a social worker for psychotherapy. A GAF score of 49 was assigned, indicating serious symptoms or any serious impairment in social, occupational, or school functioning. The Veteran was afforded a VA examination in March 2010. During the examination, he again reported having nightmares and flashbacks. He stated that he had nightmares about Vietnam, and in particular being in battles and fire fights. He had trouble sleeping. He indicated that his symptoms worsened whenever he lost someone in his family. He reported losing his father in May 2009, which he said triggered flashbacks. The Veteran denied any suicide attempts during that period, but stated that he had passive thoughts about death. He reported a sense of "foreshortened future." According to the examiner, he endorsed anhedonia and detached estrangement. He had lost interest in taking his car to shows. He endorsed episodic thoughts of violence with no specific target. He reported panic attacks as well when exposed to reminders of his traumas. The Veteran also stated that his flashbacks were triggered when he travelled or encountered a wooded and hilly area which made him think of the jungle in Vietnam. Although he denied delusions, the Veteran reported that he would hear voices telling him to watch out for other people. This occurred, he said, one to two times per month. In terms of his social, occupational, marital and family functioning, the Veteran reported being in his second marriage. He stated that he and his spouse sometimes argued, but that they did not fight. He noted that his wife was careful of him when he sleeps, due to his tendency to fight in his dreams. Because of this, she often did not sleep in the same room. He did not have children with his present wife. He does have children, however, and as the years progressed, he worried about his relationship with his grandchildren. The March 2010 examiner noted that in 2008, the Veteran retired after 33 years of working at Lockheed Martin and the Ford Motor company. The Veteran indicated that because of his sleep problems, he could no longer work. He stated that he had a history of disciplinary problems at work. Significantly, he indicated that he had been better able to tolerate his PTSD symptoms in his younger years, but that his symptoms had worsened as he aged, and lost others in his life. Based on these reported symptoms, the examiner determined that the severity level of the Veteran's symptoms to be moderate. The examiner noted that the Veteran's PTSD symptoms caused "mild to moderate difficulty in his social functioning." The examiner assigned a GAF score if 55, indicating moderate symptoms. The Veteran's symptoms as noted earlier continued throughout the rating period. Clinical progress notes from the Cleveland VA Medical Center (VAMC) show that the Veteran received on-going therapy for PTSD. In September 2011, he raised concerns with his provider about his PTSD symptoms and resulting sleep problems, which were described as fragmented sleep and nightmares. At that time, he had attempted Nightmare Repressing Therapy to control his condition. In a 2015 clinical progress note, the Veteran indicated to the examiner, that he continued to have nightmares, but not as often. He recounted a recurrent dream where he was riding a bicycle and a Vietnamese person was holding him back. He found the dream to be stressful. He denied hallucinations or suicidal ideation. The Veteran was provided a VA examination in February 2016. Behaviorally, he was observed to walk slowly. His clothes were torn and stained. His affect was defined as "depressed." The examiner stated that he sometimes gave irrelevant responses, which the examiner stated could have been due to his hearing loss or his PTSD. He complained that he had difficulty sleeping and that his wife rarely slept with him because he kicked and screamed and yells about "gooks." He hit his wife in his sleep. He admitted to having regular suicidal thoughts. The Veteran indicated that he had thought of running his truck off the road approximately one month prior to the examination. He reported that he did not have a current plan to harm himself. He denied delusions, hallucinations, or paranoia, though he stated that he experienced anxiety attacks. At the examination, the Veteran was quite distraught and the examiner determined it was clinically unwise to continue the evaluation. The examiner escorted the Veteran to mental health care, where he was seen as a walk-in. The examiner provided the Veteran with contact information for the Veteran's Crisis Line and write a "High Risk for Suicide Consult." The Veteran was seen by a psychiatrist at his walk-in appointment. At the evaluation, he reported feeling depressed for a long time. He reported chronic suicidal ideas but did not have any intent or plan at the time. He reported that his religious faith and grandchildren were protective factors. He still felt hopeful and oriented toward the future. Although he described depression, he stated that he did not feel depressed all day every day. He did not have periods of persistent depression lasting more than two days. He stated he had nightmares two to three times per week, and flashbacks once or twice a week. For recreation he spent time with his grandchildren, went to the mall, and watched television. A few days later in February 2016, the Veteran was seen by a social worker. The Veteran again reported that February was a difficult month for him. He reported nightmares, depression, and loss of interest in his hobby of working on his car. He reported increased irritability. Later in February 2016, he was seen by a psychiatrist again. She noted that his affect was variable and appropriate to content. He denied suicidal and homicidal ideation. His thought pattern and content were normal. His immediate memory was normal. His attention and concentration were abnormal, as he was unable to subtract by serial sevens. He could not complete serial threes and could not spell the word "world" backwards. His self-esteem was positive. His insight and judgment were adequate. The Veteran was evaluated again by the February 2016 VA examiner two weeks after his walk-in appointment. The examiner diagnosed PTSD and stated that it caused occupational and social impairment with occasional decrease in work efficiently and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. This is contemplated by the 50 percent criteria. The Veteran reported living with his wife, and stated that they argued but did not "fight." He did not talk to her about his traumas. He indicated that February was a difficult month for him because of associated combat memories. The Veteran reported depressed mood, "fleeting suicidal thoughts over a month ago," but none at the time of the evaluation. He stated that he had anxiety but did not have panic attacks. There were no delusions or hallucinations. The Veteran had survivor's guilt. The examiner described the severity of his symptoms as "moderate." The Veteran had depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. Upon examination, he was alert and oriented. The examiner noted, "[i]n contrast to his appearance at the time of my interview with him two weeks ago, his clothing was not torn or stained, and his appearance and grooming were unremarkable." His statements were logical and coherent. He became tearful when discussing his trauma. There were no psychotic symptoms. The examiner explained that the Veteran's ability to understand and follow instructions was not impaired. His ability to sustain concentration to perform simple tasks was not impaired. His ability to sustain concentration to task persistence and pace was moderately impaired. His ability to respond appropriately to people was not impaired. His ability to accept criticism was moderately impaired. Lastly, his impulse control was not impaired. A hearing was held in this matter in September 2017. At the hearing the Veteran credibly testified about his social impairment, including violent tendencies such as the fact that he wanted to rip someone's head off. The Veteran stated that he does not like to go into large crowds, and when he goes places, he sits with his back to the wall so he can see who is coming and going. The Veteran also credibly testified about suicidal ideation and episodes of memory loss. Throughout the appeal period, his PTSD has caused a wide variety of psychiatric symptoms to include: suicidal ideation, hypervigilance, exaggerated startle response, irritability, social isolation, chronic sleep impairment, and violent tendencies, including striking out at his wife while sleeping. The Veteran also had occupational impairment as he indicated that he had had difficulties at work. His most prevalent symptom is nightmares and flashbacks, which he has several times a week. Although the Veteran demonstrated times when his condition was slightly improved, the record reflects that these periods ebbed and flowed, and that his PTSD has required constant monitoring and treatment. The severity level has not improved throughout the rating period. Significantly, he experiences frequent suicidal ideation which contributes to social and occupational impairment with deficiencies in most areas. Considering the totality of his symptoms under DC 9411, an initial disability rating of 70 percent is appropriate. 38 C.F.R. § 4.7. With respect to a higher rating of 100 percent, the Veteran has not exhibited symptoms that produce total occupational and total social impairment. The Veteran generally does not exhibit inappropriate behavior. In all but one evaluation his behavior was described as appropriate. With the exception of his first February 2016 VA examination, he has been dressed appropriately, and he has been seen as cooperative. He has not had hallucinations or obsessive ritualistic behavior. While he has exhibited some mild memory loss, it is not persistent as according to his evaluations. The Veteran is capable of managing himself and his finances, albeit with the assistance of his wife, which is contemplated in the present 70 percent rating. He has been married to his wife for many years and has positive relationships with his grandchildren, indicating that there is not total social impairment. The Board acknowledges that in February 2016, the Veteran was temporarily deemed to be a high risk for suicide, and that being a persistent danger to oneself or others is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, this was one incident during the appeal period, and is not frequent or severe enough to result in total occupational and social impairment. The record also shows that the Veteran has had violent thoughts, as noted at his hearing, and that he has hit his wife while he was asleep. However, the frequency of these incidents does not show that he is a persistent danger to others. During the appeal period, he has not committed violent acts while awake, and has not been deemed dangerous by a medical professional. His violent thoughts and striking out in his sleep are not such that total occupational and social impairment result from them. As such, a 100 percent rating is not warranted. In conclusion, and initial 70 percent disability rating for PTSD is granted. IV. TDIU When entitlement to a total disability rating based on individual unemployability (TDIU) under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In this case the Veteran was denied TDIU in a rating dated February 2011. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2017). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2017). The criteria set forth in 38 C.F.R. § 4.16(a) are met as a result of the Board's grant of an initial 70 percent disability rating for PTSD. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2015); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board must take into account the Veteran's eduction, training, and work history when determining whether a TDIU is warranted. Pederson v. McDonald, 27 Vet. App. 276 (2015). In this case, the Veteran has indicated that he retired from his employment because his intrusive nightmares and flashbacks caused sleep disturbance, such that he was unable to work any longer. The Veteran also reported a history of problems at work. However, VA examiners have stated that his PTSD does not preclude gainful employment. However, it does result in some level of occupational impairment. Furthermore, at his May 2013 VA examinations, clinicians determined that the Veteran's service-connected heart condition and peripheral neuropathy preclude physical employment. The Veteran's primary occupational history is that of an assembler, a physical job. Taking into account his training and occupational history, the impact of his service connected disabilities preclude substantially gainful employment. As a result, a TDIU is granted. ORDER Service connection for hypertension is granted. An initial 70 percent rating for PTSD is granted. A TDIU is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs