Citation Nr: 1804081	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  14-41 690	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicides.

2. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for hypertension, to include as due to exposure to herbicides/and or secondary to posttraumatic stress disorder (PTSD).

3. Entitlement to service connection for hypertension, to include as due to exposure to herbicides/and or secondary to PTSD.

4. Entitlement to service connection for a psychiatric disability other than PTSD.

5. Entitlement to service connection for a heart condition, to include as due to exposure to herbicides.

6. Entitlement service connection for bilateral hearing loss.
7. Entitlement to an initial rating in excess of 50 percent for PTSD.

8. Entitlement to total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Dworkin, Associate Counsel


INTRODUCTION

The Veteran served on active service from January 1969 to February 1971.

This matter comes before the Board of Veterans' Appeals (Board) from October 2012, November 2014, and July 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

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).

The issues of entitlement to service connection for hypertension, a psychiatric disability other than PTSD, 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. An unappealed December 2007 rating decision denied the Veteran's claim for entitlement to service connection for diabetes mellitus type II. 

2. An unappealed August 2008 rating decision denied the Veteran's claim for entitlement to service connection for hypertension, to include as due to exposure to herbicides. 

3. The evidence associated with the claims file subsequent to the December 2007 rating decision is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes mellitus type II. 

4. The evidence associated with the claims file subsequent to the August 2008 rating decision is new and material because it raises a reasonable possibility of substantiating the claim for service connection for hypertension.

5. The evidence does not show that the Veteran has a heart condition.

6. The Veteran does not have a bilateral hearing loss disability for VA purposes.

7. The Veteran's service connected PTSD symptoms more nearly approximate occupational and social impairment with deficiencies in most areas such as work, and mood, due to such symptoms as depression, anxiety, and difficulty in adapting to stressful circumstances including work or work like settings as well as an inability to establish and maintain effective relationships. Throughout the entire appeal period, the Veteran's service-connected PTSD symptoms were not productive of total occupational and social impairment.





CONCLUSIONS OF LAW

1. The December 2007 rating decision denying the Veteran's claim for service connection for diabetes mellitus type II, to include as due to exposure to herbicides, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).

2. New and material evidence has not been received to reopen a claim of entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicides, and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

3. The August 2008 rating decision denying the Veteran's claim for service connection for hypertension, to include as due to exposure to herbicides, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).

4. As new and material evidence has been received since the August 2008 rating decision, the requirements to reopen a claim for service connection for hypertension, to include as due to herbicide exposure and/or due to PTSD, have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

5. The criteria for service connection for a heart condition are not met. 38 U.S.C. §§ 1110, 1111, 1153, 5107, 7104 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2017).

6. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303 , 3.307, 3.309 (2017).

7. The criteria for the assignment of an initial rating of 70 percent, but no higher, for the service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.126, 4.130, Diagnostic Code 9411 (2017).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with 38 U.S.C. § 5103(a)-compliant notice in August 2012 and October 2014. 

The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran was provided VA examinations with respect to the petition to reopen the claim for diabetes mellitus, as well as the claims for entitlement to service connection for hearing loss and entitlement to an increased rating for PTSD decided herein. The examinations adequately provide the findings necessary to a resolution to the appeal. 

With regards to the Veteran's claim for entitlement to service connection for a heart condition, no examination has been provided. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. 5103A (d); 38 C.F.R. § 3.159 (c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As is discussed in greater detail below, there is no indication of a heart condition in service, and no evidence of signs or symptoms of a current diagnosis of a heart condition to trigger to the duty to examine. Therefore, the Board finds that a VA examination is not warranted regarding the claim for a heart condition.

The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. New and Material Evidence

Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c) (2012). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012).

New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017).

The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156 (a) (2017); Shade v. Shinseki, 24 Vet. App. 110 (2010). 

For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992).

With regard to the claim concerning diabetes mellitus type II, to include as due to exposure to herbicides, a December 2007 RO rating decision denied service connection for diabetes mellitus type II as there was no record of the Veteran having a current diagnosis of this disease at the time. 

The pertinent evidence of record at time of the December 2007 RO rating decision included the Veteran's service medical records and VA treatment records. 

The evidence received since the December 2007 RO rating decision consists of VA treatment records, private treatment records, lay statements, and a VA diabetes mellitus examination report that show that the Veteran has not been diagnosed with diabetes mellitus type II. While the Board finds that the evidence added to the record since the December 2007 RO rating decision is new, as it is evidence that was not previously submitted to the agency decision-makers, the Board finds that the evidence is not material. There is no new evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for diabetes mellitus. While the Veteran has undergone several medical evaluations and treatments, he has never been assessed with diabetes mellitus type II, which was confirmed in the October 2014 VA examination report which showed no diagnosis of diabetes mellitus type II. The only evidence that purports to support the Veteran's claim that he has a current diagnosis of diabetes mellitus type II are his own statements which are redundant of the evidence of record at the time of the December 2007 RO rating decision. Therefore, the evidence added to the record is not sufficient to raise a reasonable possibility of substantiating the claim.

Accordingly, because new and material evidence has not been submitted, the Board finds that reopening of the claim of entitlement to service connection for diabetes mellitus type II is not warranted.

With regard to the claim concerning new and material evidence for entitlement to hypertension, to include as secondary to exposure to herbicides, the Board notes that the claim was previously denied in an August 2008 rating decision, on the basis there was no evidence of record to show that the Veteran's hypertension was incurred in service and that hypertension was not shown to be presumptively related to exposure to herbicides while deployed in the Republic of Vietnam. 

Since the August 2008 rating decision, the newly received evidence includes a December 2017 informal hearing presentation in which the Veteran's representative asserts that the Veteran's hypertension was caused or aggravated by his service connected PTSD. The Board notes that at the time of the August 2008 rating decision, the Veteran was not yet service connected for PTSD. 

The Board finds that the Veteran's claim for entitlement to service connection for hypertension, to include as due to PTSD, was not before the adjudicators at the time of the August 2008 rating decision. Furthermore, the new evidence is material because it relates to unproven elements of the claim previously denied in the previous rating decisions. Specifically, that newly submitted evidence suggests that the Veteran's hypertension may have been caused or aggravated by service connected PTSD. This evidence is thus material to the Veteran's claim. 

Accordingly, the Board finds that the low threshold for reopening the claim for service connection for hypertension have been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the new evidence is material, and the claim is reopened.

III. Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2016). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017).

Service Connection- Heart Condition

Service connection may only be granted for a current disability. When a claimed condition is not shown, there may be no grant of service connection. Congress specifically limited entitlement for service-connected disease or injury to cases where the incident resulted in a disability. In the absence of proof of a present disability there can be no valid claim. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992).

The Veteran asserts that he has a heart condition due to exposure to herbicides during service.

The Board notes that a review of the Veteran's service treatment records shows no reports or complaints of a heart condition. Additionally, a review of the Veteran's post service VA and private treatment records shows no treatment or complaints of a heart condition.

The only evidence of record is from the Veteran's own lay statements, which he contends that he has a heart condition. 

Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the present case, a heart condition is not simple to diagnose.  The diagnosis of a heart condition requires greater medical knowledge and testing to determine a diagnosis, which the Veteran has not shown he possesses. Accordingly, the Veteran is not competent to establish diagnosis for his claimed heart condition. 

In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319 (2007).

The record does not demonstrate that the Veteran has been diagnosed with a heart condition. The threshold element of a service connection claim (a current disability) has not been met; therefore, service connection for a heart condition must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992).

As the preponderance of the evidence is against the claim for service connection for a heart condition, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Service Connection- Bilateral Hearing Loss

For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

To establish service connection for bilateral hearing loss, the Veteran must show he has a current disability.  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2017).

An October 2010 VA audiological examination report shows that the Veteran was assessed with pure tone thresholds of the following:


HERTZ

500
1000
2000
3000
4000
RIGHT
20
15
20
25
35
LEFT
20
20
20
20
25


Speech recognition ability was 100 percent in the right ear, and 100 percent in the left ear.  

While these test results reveal some hearing loss for the right ear and normal hearing for the left ear, they do not establish a hearing loss disability as defined by VA regulation as the Veteran's auditory thresholds do not exceed 40 decibels at any frequency or 26 decibels for at least three frequencies in either ear. 38 C.F.R. § 3.385. The Veteran's speech recognition scores are also within normal limits bilaterally.  Accordingly, the evidence is against finding that the Veteran has a current hearing loss disability.  

The threshold element of a service connection claim (a current disability) has not been met; therefore, service connection for bilateral hearing loss must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, the preponderance of the evidence is against the claim and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

IV. Increased Ratings

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 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claim file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). 

Increased Rating- PTSD

When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission.  VA shall assign a rating 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) (2017). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b) (2017).

The Veteran's service-connected PTSD was assigned an initial 50 percent rating effective May 10, 2011 pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. A General Rating formula for evaluating psychiatric impairment other than eating disorders contains the actual rating criteria for evaluating the Veteran's disability.

Pursuant to the General Rating Formula for Mental Disorders, a 50 percent rating 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 per 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, General Rating Formula for Mental Disorders (2017).

A 70 percent rating is warranted for 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 work like setting); inability to establish and maintain effective relationships.  Id.

A rating of 100 percent is warranted for 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. Id.

The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but to serve only 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). 

VA considers psychiatric disabilities based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. §§ 4.125, 4.130 (2017). An interim final rule was issued on August 4, 2014, that replaced the DSM-IV with the DSM-5.  The provisions of the interim final rule apply to all applications for benefits that are received by VA or that have been certified to the Board on or after August 4, 2014. As the Veteran's claim was certified in November 2016, the DSM-5 is applicable in this case.

A November 2011 private mental health evaluation letter shows that the Veteran had continued sleep problems, nightmares, and flashbacks. He was noted to be always hyper-vigilant and would wake easily at night in an anxious state. He reported that he did not like to be in places where there was a great deal of noise. Panic attacks were reported. He was noted to have a loss of interest and felt emotionally distant from others. Concentration issues were reported. The Veteran was also noted to have depressed mood with episodes where he would get irritated and anxious with frequent mood changes. He was noted to not be able to handle stress or react appropriately to his physical and social environment. Marked decreased interest and pleasure in most of his usual activities were noted. He reported insolating himself and could stay home for days, only leaving for medical appointments.  

A July 2011 VA examination report shows that the Veteran has complaints of feeling anxious due to pressure and that he reported less energy or interest that he used to. He reported being easily distracted, difficulty concentrating, often forgets things, feels confused, and has difficulty elucidating his thoughts. These difficulties were reported to create an increase in anger and irritability for him. The Veteran also reported falling asleep and staying asleep but only sleeping 2 to 3 hours per night. He reported a decrease in appetite and often forgot to eat but has not lost any weight. He reported finding himself on guard and always watching out for enemies. He also reported having many angry outbursts with fear that he might at some point turn aggressive. The examiner reported that the Veteran lived with his wife of 43 years and had three adult children. The Veteran reported having good relationships with two children. He reported that he retired three years ago after working for 33 years in a beauty salon he co-owned with his wife. He described himself as a good person, a good citizen, willing to listen to others, helpful, and never looking to harm others. He also reported that he was an introvert not enjoying engaging strangers in conversation. He reported that he used to have many friends and it was always easy to make friends but at this point in his life he was no longer looking to make new friends. He reported also enjoying reading, meditating, watching TV shows, watching sports, spending time with family and his friends, and working on projects around his house. His primary support groups were noted as his siblings, his youngest son, his wife, and a longtime friend. The Veteran reported that he is one of 10 children and has good relationships with his brother and sisters. The examiner reported that the Veteran was well groomed and had appropriate hygiene; alert and cooperative; eye contract most of the time; oriented to time, person, and place; mood was euthymic, although he would often complain of mild to moderate levels of anxiety; affect was stable and in full range; speech was readily spontaneous and generally of normal rate and volume; no impairments in language functioning; no unusual thoughts; no evidence of cognitive slippage; speech was sometimes circumstantial; no delusions, illusions, or auditory or visual hallucinations; no perceptual disturbances, misinterpretations or reality; memory appeared poor remote and recent; no suicidal or homicidal ideations were reported. The examiner diagnosed the Veteran with a dysthymic disorder and anxiety disorder. Effects on occupational and social functioning were noted as deficiencies in family, work, and mood in that mood instability could limit in his functioning in these areas. Reduced reliability and productivity due to PTSD symptoms were also noted by the examiner. 

A March 2015 private treatment letter shows that the Veteran reported sleep problems with frequent nightmares. The Veteran reported being irritable, highly anxious, and intolerant of noises or conversations. He reported being isolative most of the time in his room. The Veteran also reported that he communicated very little with anyone but when he did he was highly defensive and argumentative and avoided social contact or group participation. Other times, the Veteran reported being sad, depressed, and frequent crying spells. Additionally, the Veteran reported frequent panic attacks with chest pain. The Veteran was also noted to have an inability to finish activities he initiates and was intolerant of stressful situations. The private treatment provider reported that the Veteran was hypervigilant; lacked appetite; expressed feelings of hopelessness and worthlessness; and low self-esteem. While no reports of suicidal or homicidal ideations were reported the Veteran did communicate that his life was not worth living.

A February 2016 private psychiatric treatment letter shows that the Veteran was noted to have a lack of energy, motivation, social withdrawal, insomnia, and flashbacks associated with the experiences he had in Vietnam. The Veteran was noted to be irritable, angry, and unable to socialize or interact with social contacts or groups. He was also noted to be frequently sad, depressed, melancholic, crying frequently, he is also very defensive, argumentative with poor communication particularly with wife, close relatives, and with his neighbors. The private treatment provider reported that since 2015 the Veteran has remained, isolative, withdrawn, avoiding social contacts, low energy, low motivation, unable to cope with stressful situations.  The Veteran was noted to deny suicidal or homicidal ideas, but verbalizes that at this point that his life is not worth living like it is. The Veteran found difficulty to persist at a task or finish it. A tendency towards self-denigration possibly due to current psychiatric symptomatology and character traits were noted. The Veteran was also noted to rely on others for security, support, guidance, and direction. He was noted to be generally self-conscious, passive, and lacking self-confidence and initiative. Taking into consideration the severity of his physical and emotional symptoms and age, the private treatment provider reported that the Veteran was totally incapacitated to engage in a gainful job situation and that his condition also caused complete social and industrial inadaptability. The Veteran was diagnosed with PTSD, major mood disorder, depression, and agoraphobia with present panic attacks.

A September 2016 VA examination report shows that the Veteran was diagnosed with PTSD. The examiner determined that the Veteran did not have any other mental health disorder. Occupational and social impairment was noted due to transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The Veteran was noted to be married since 1968. He described family relations as good with his wife but not good with his son who had a substance abuse problem. Mental status examination showed that the Veteran was well groomed; good eye contact with no involuntary movements; speech with normal tone, rate, rhythm; mood was anxious; affect was restricted; thought process linear; denied suicidal and homicidal ideations; oriented to person, place, and time; denied auditory, visual, tactile, and olfactory hallucinations; insight limited; and judgment limited. Symptoms were noted by the examiner as depressed mood, anxiety, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. The examiner also noted that other symptoms were an inability to enjoy formerly pleasurable activities; and poor interpersonal relations.

In reviewing the evidence of record, to include medical records and examination reports, the Board finds that an initial rating of 70 percent, but no higher, is warranted for the Veteran's PTSD.

During this period the pertinent medical evidence shows that the Veteran's service-connected PTSD caused symptoms of sleep disturbance, depression, anxiety, social isolation, avoidance behaviors, markedly diminished interest or participation in significant activities, panic attacks, and feeling of detachment or estrangement from others. Collectively, those symptoms are indicative of occupational and social impairment with deficiencies in most areas.

The presence or absence of certain symptoms is not necessarily determinative. Those symptoms must ultimately result in the occupational and social impairment in the referenced areas. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The treatment records and VA examination reports were indicative of occupational and social impairment that approximate the criteria for a 70 percent. The findings of the VA examiners and private treatment records demonstrated that the Veteran has had occupational and social impairment with deficiencies in most areas such as family and social relations. 

The Board finds that for the time period beginning on May 10, 2011, the Veteran's PTSD symptoms nearly approximate a 70 percent rating, but no higher. 38 C.F.R. § 4.7 (2017). In granting the 70 percent rating beginning May 10, 2011, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002).

In reviewing the evidence of record, to include medical records and examination reports, the Board finds that an increased rating of 100 percent is not warranted for the Veteran's PTSD during any time during the course of the appeal. The Board finds that the 100 percent rating is not proper because the preponderance of the evidence is against a finding that total social and occupational impairment is shown. Mauerhan v. Principi, 16 Vet. App. 436 (2002). While the Veteran's symptoms are severe and consist of the persistence of isolating behavior, panic attacks, and the private treatment provider's opinion that the Veteran totally occupationally impaired, he is not entitled to a 100 percent rating for PTSD because total social impairment is not shown by the evidence of record. The record indicates that the Veteran has consistently reported having good relationships with his wife, two of his three children, as well as his numerous siblings which is evidence itself shows that he is not totally socially impaired. 

The Board finds the symptoms associated with the Veteran's service-connected PTSD do not meet the criteria for the maximum 100 percent rating. A 100 percent rating requires total occupational and social impairment due to psychiatric symptoms. However, the Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran's psychiatric disability. The evidence of record does not indicate that the Veteran has exhibited symptoms such as persistent delusions; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. As noted throughout the record, the Veteran is married and has good relationships with is family members, which indicate that he is not totally socially impaired. Therefore, the psychiatric symptoms shown do not support the assignment of a 100 percent schedular rating.

Therefore, the Board finds that a rating in excess of 70 percent is not warranted. The preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

New and material evidence has not been presented to reopen the claim for entitlement to service connection for a diabetes mellitus type II, and the appeal is denied.

New and material evidence has been presented to reopen the claim for entitlement to service connection for hypertension, to include as due to exposure to herbicides and to include as due to PTSD, and the claim is reopened.

Entitlement to service connection for a heart condition is denied.

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to an initial rating of 70 percent for PTSD is granted.


REMAND

Service Connection- Hypertension Secondary to PTSD

During the course of this appeal, the Board notes that the Veteran had originally asserted that service connection was warranted for hypertension on a theory that the disability was due to or incurred in service, to include as secondary exposure to herbicides while the Veteran was deployed in the Republic of Vietnam. 

In December 2017, the Veteran's representative submitted a new theory regarding service connection for hypertension, namely that the Veteran's service-connected PTSD caused or aggravated hypertension. However, the Veteran has not been provided with a VA examination to address the etiology of his hypertension, to include on a direct and secondary basis due to PTSD.

In light of the new evidence of record and the Veteran's assertion that his hypertension is due to or aggravated by his service-connected PTSD, a VA examination must be scheduled to address whether the Veteran's hypertension is due to service or has been caused or aggravated by service-connected disability. 38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Service Connection- Psychiatric Disability other than PTSD

Separate service connection is available in cases where there are distinct and separate symptoms, diagnoses, and causes. Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009) (stating that the Veteran's "bipolar affective disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for the VA to treat these separately diagnosed conditions as producing only the same disability"). Here, the Veteran asserts that his other diagnosed psychiatric disabilities are separate and distinct from his service connected PTSD. However, the record is contradictory as to what other psychiatric disabilities the Veteran experiences, or has experienced during the appeal period, other than PTSD. Thus, on remand, the Veteran should be afforded an opportunity to undergo another VA examination as to the issue of whether the psychiatric disorders other than PTSD are distinct and separate from the PTSD and if so, whether they are related to any event in service. In considering all pertinent theories of service connection, the VA examiner should also address whether any current psychiatric disorder is proximately due, the result of, or aggravated by his service-connected PTSD. 38 C.F.R. § 3.310 (2017).


TDIU

The Board notes that the issue of entitlement to a TDIU is intertwined with the service connection issues herein remanded. The Board notes further that the Veteran has been granted an increased rating for PTSD. Thus, the Veteran's claim for a TDIU is remanded for adjudication of the above claims and a consideration of the higher rating for PTSD. Harris v. Derwinski, 1 Vet. App. 180 (1991).

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. Schedule the Veteran for a VA examination by a medical professional with the appropriate expertise to determine the nature and etiology of the Veteran's claimed hypertension. The examiner must review the claims file and must note that review in the report. The examiner must provide a complete rationale for the opinions expressed. Any necessary tests should be obtained. The examiner must provide thorough responses to each of the following:

(a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed hypertension is related to active service, to include exposure to herbicides.

(b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed hypertension was caused by or is a result of service-connected PTSD. 

(c) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed hypertension has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected PTSD.

2. Schedule the Veteran for a VA examination to determine the etiology of any current psychiatric condition other than PTSD, to include depression, agoraphobia, and generalized anxiety disorder. The claims file must be made available to and reviewed by the examiner. The examiner should specifically address the following:

(a) Whether the Veteran's current psychiatric disorders other than PTSD are distinct and separate disabilities from the already service-connected PTSD.

If the answer is YES (distinct and separate), discuss whether it is at least as likely as not (at least 50 percent probability) that any current psychiatric disorder other than PTSD was incurred in service or is otherwise causally or etiologically related to any event in service.

If the answer is NO, the examiner must reconcile that finding with the separate diagnoses present in the claims file.

(b) Whether it is at least as likely as not that the service-connected PTSD: (1) caused or (2) permanently aggravated any additionally diagnosed psychiatric disorder(s).

Aggravation is defined for legal purposes as a chronic or permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. 

3. Then, readjudicate the claims, to include entitlement to TDIU. If the decisions remain adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board.

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).

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. §§ 5109B, 7112 (2012).



______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs