Citation Nr: 18140269 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 18-24 933 DATE: October 2, 2018 ORDER A higher rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. A total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. For the entire rating period, the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms of a nature and severity most nearly approximating those contemplated by a 70 percent disability rating. 2. The Veteran’s PTSD is as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130. 2. The criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1970 to August 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2013, May 2015, and October 2015 rating decisions. 1. Entitlement to a higher rating for posttraumatic stress disorder (PTSD). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of the disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all cases, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). *** Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence that bears on occupational and social impairment, rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Percentage ratings for mental health disabilities are based on the criteria in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list but, rather, serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating for a mental disorder. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Indeed, “VA must engage in a holistic analysis” that assess the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was certified to the Board on June 5, 2018, so it was pending before AOJ on August 4, 2014. As such, the DSM-5 applies and the GAF scores will not be considered. *** Throughout the period on appeal, the Veteran’s PTSD is rated as 30 percent disabling. The Veteran, through his attorney, asserts that he is entitled to a rating of 70 percent. He has submitted an October 2015 private examination report that endorses such a rating. Under General Rating Formula for Mental Disorders, a 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. *** Having reviewed the relevant evidence, and resolving any doubt in favor of the Veteran, the Board finds that a rating of 70 percent is warranted for the entire appeal period. Throughout this period, the weight of the evidence supports a finding that the Veteran’s PTSD manifested as occupational and social impairment with deficiencies in most areas. Significantly, the evidence shows near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective work and social relationships. The Veteran has been married and divorced five times, and he is estranged from his five children. He has only one friend, who resides out of state; he communicates with him over the internet and sees him once a year. The Veteran lives with a female friend, who assists with activities of daily living, such as grocery shopping. In a January 2015 statement, the female friend stated that the Veteran leaves the house maybe four times a month, that he is in a bad mood 80 percent of the time, and that she has learned to not engage him when he is stressed out. In a January 2015 statement, the Veteran stated that going to the grocery store is overwhelming for him. He also recounted a verbal argument with a supervisor from the time when he was employed. The Veteran stopped working in 2009. The evidence of record, however, does not warrant a rating higher than 70 percent for any portion of the appeal period, as the weight of the evidence fails to show that the Veteran’s PTSD has resulted in total occupational and social impairment. In this regard, the Board notes that there are no reports of grossly inappropriate behavior or an inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, own occupation or own name, and he has denied suicidal thoughts. The Board further observes that the Veteran has a housemate and there is no indication that this relationship is conflictive. While he is estranged from his five children, he has stated that he occasionally communicates with at least one of them. Further, he has a good friend from service, with whom he appears to have regular contact, albeit over the internet. Thus, there is no indication that his PTSD results in total social impairment. The Board certainly is sympathetic to the social difficulties experienced by the Veteran as a result of his PTSD; however, the Veteran does retain the ability to function, albeit with assistance from his housemate. As such, while the Veteran may have significant social impairment due to his PTSD with associated depression, the Board finds that based on the lay and medical evidence of record he does not have total social impairment as contemplated for a 100 percent rating. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran raised the issue of entitlement to a TDIU as part of his claim to a higher rating for PTSD. See June 2015 notice of disagreement. A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Although VA generally compensates veterans for service-connected disability or disabilities based on its rating schedule reflecting average impairment in earning capacity, it recognizes that such disabilities may render a veteran unemployable even though the schedular requirements for a 100% rating haven't been met. Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). In those circumstances, TDIU is available. To determine whether it is warranted in a given case, VA conducts a holistic and individualized assessment of the veteran. See id. at 85. In this case, the Veteran’s current ratings satisfy the percentage requirements of 38 C.F.R. § 4.16(a) and he meets the criteria for consideration for entitlement to TDIU on a schedular basis. Even so, it must be found that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Consequently, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. Indeed, when conducting a TDIU analysis, the Board “must take into account the individual veteran’s education, training, and work history.” Pederson v. McDonald, 27 Vet. App. 276, 286 (2015) (en banc). In addition to PTSD, the Veteran is also service-connected for diabetes mellitus type 2 and peripheral neuropathy of the upper and lower extremities, bilaterally. The Veteran has reported a high school education with one year of college studies. In his July 2015 TDIU application, he reported last working in 2009. His last employment was as a welder for a manufacturing company, a job that he held from 1995 to 2009. In a July 2015 statement, he stated that this employment required him to be always on his feet and that he would often argue with coworkers. Regarding the latter, he recounted a verbal argument with a supervisor. He further suggested that he worked in a protected environment, as his supervisor was a friend of his brother and knew of the Veteran’s mental health challenges. In this regard, the Veteran stated that he and his supervisor had “an understanding.” At an October 2015 private psychological examination, the Veteran indicated that he held four or five different jobs after service, most of them as tractor trailer driver. Regarding the Veteran’s employability, the examiner indicated that the Veteran’s mental health problems had seriously compromised his ability to maintain substantially gainful employment. Having reviewed the record, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s PTSD prevents him from securing or following substantially gainful employment. While the Veteran worked as a welder from 1995 to 2009, the evidence suggests that the Veteran worked in a protected environment, where his mental health challenges were known and tolerated. Furthermore, the evidence indicates that the Veteran got into arguments with coworkers, including one supervisor. This supports a finding that the Veteran’s PTSD prevent him from doing work that entails significant human interaction. While, in theory, the Veteran would be able to do work that does not entail significant human interaction, there is no indication that he has training or experience in other areas of endeavor. While he does have experience as a tractor trailer driver, the Board finds this line of work to be incompatible with his PTSD. In sum, the Board finds the evidence to be in equipoise with respect to whether the service-connected mental health disability precludes the Veteran from obtaining and retaining substantially gainful employment. When reasonable doubt is resolved in the Veteran’s favor, the Board finds that the Veteran’s service-connected mental health disability is as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In short, entitlement to a TDIU is warranted. REASONS FOR REMAND 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. The Veteran asserts that his diagnosed COPD is related to service, to include as secondary to his service-connected PTSD. Regarding secondary service connection, the Veteran, through his attorney, has asserted that his COPD is due to his smoking, which in turn is due to his PTSD. In support, the Veteran’s attorney cites an opinion from the Office of General Counsel, dated October 28, 2003. An October 2015 private psychological test report (received November 2015) shows a finding that, in an ill-advised attempt to mask his symptoms of anxiety, depression, and mood instability, the Veteran abused alcohol and cigarettes from many years, which led to many negative consequences, to include health concerns. In May 2017, the Veteran underwent VA examinations for both his COPD and PTSD. The physician who conducted the VA respiratory examination opined that the Veteran’s COPD is less likely than not proximately due to or the result of his PTSD. The examiner’s rationale was that peer-reviewed literature does not support that PTSD causes cigarette smoking or COPD. The psychologist who conducted the VA examination for PTSD reached a similar conclusion. In support of his conclusion, the VA psychologist noted that the Veteran started smoking at age 14 and continued to do so throughout his life up until 2013, when he began to have significant breathing issues. He further noted that the Veteran related his COPD to his history of smoking and welding work, and that he did not indicate any specific connection to PTSD. In his May 2018 substantive appeal, the Veteran, through his attorney, questioned the adequacy of the opinion provided by the May 2017 VA psychologist. Significantly, the Veteran asserted that the VA opinion was based on an inaccurate factual premise, as it did not consider the October 2015 private psychological test report. During that evaluation, the Veteran stated that he used to smoke a lot and that it took him a long time to quit smoking because smoking really helped his nerves. Further, the evaluation report shows a finding that the Veteran abused cigarettes to mask his symptoms of anxiety, depression, and mood instability. Finally, the Veteran asserted that the May 2017 VA opinion failed to address whether the Veteran’s PTSD caused him to continue smoking or whether it caused his smoking to increase. The Board agrees with the Veteran’s contentions. The May 2017 VA opinions are not adequate. The opinions from both the physician who conducted the May 2017 VA respiratory examination and the psychologist who conducted the May 2017 VA PTSD examination are inadequate because they do not show adequate consideration of the October 2015 private psychological examination, and failed to consider the aggravation prong of secondary service connection. The first opinion is further inadequate because it lacks a comprehensive medical rationale. Rather, its rationale consisted of a single sentence simply stating that peer-reviewed literature does not support that PTSD causes cigarette smoking or COPD. In light of the foregoing, the Board finds additional development is warranted to adjudicate this issue on appeal. 2. Entitlement to service connection for hypertension is remanded. The Veteran asserts that his diagnosed hypertension is related to service. He has put two theories of entitlement. First, he has asserted that his hypertension is related to herbicide exposure in Vietnam. Second, he has asserted that his hypertension is secondary to his service-connected PTSD and/or diabetes. Regarding the Veteran’s assertion that his hypertension is secondary to his diabetes, an August 2017 VA examiner opined that the Veteran’s hypertension was less likely than not caused or aggravated by his service-connected diabetes. The examiner’s rationale was that the Veteran’s hypertension preceded his diabetes diagnosis by several years, and that hypertension is progressive in nature and often requires adjustments. In May 2017, a different VA examiner opined that the Veteran’s hypertension is at least as likely as not proximately due to or the result of his PTSD. The examiner’s rationale was that peer review literature supports that hypertension may be more common among individuals with certain personality traits and hypertension. In support of this rationale, the examiner provided the web address from the UpToDate clinical decision support resource. The RO determined that a more adequate rationale was necessary and request an addendum opinion. In April 2018, the same VA examiner reached a different conclusion. This time, he concluded that it is less likely than not that the Veteran’s hypertension was caused by his PTSD. The examiner’s rationale was that medical literature does not indicate a direct causal relationship between PTSD and hypertension; rather, the medical literature only shows an association between the two conditions. Having considered both VA opinions, the Board finds that an adequate opinion is not of record. Both VA opinions lack a comprehensive medical rationale. Instead, both opinions are based on a single-sentence summary of the medical literature. Further, neither opinion addressed the aggravation prong of secondary service connection. Finally, regarding the April 2018 addendum opinion, the Board notes that the examiner based his conclusion on the absence of medical literature indicating a direct causal relationship between PTSD and hypertension. The examiner, however, did acknowledge that there is an association between PTSD and hypertension, but did not explain why such an association does not support a finding that the Veteran’s hypertension is at least as likely as not related to his PTSD. This defect further renders the April 2018 addendum opinion inadequate. As such, the Board finds additional development is needed to adjudicate this issue on appeal. Finally, no VA examiner has addressed the Veteran’s contention that his hypertension is related to herbicide exposure in Vietnam. (The Veteran served in Vietnam and is presumed to have had exposure to herbicide agents.) In his May 2018 substantive appeal, the Veteran, through his attorney, cited the National Academy of Sciences’ Veterans and Agent Orange (VAO) Update, as evidence that there is limited or suggestive evidence of an association between herbicide exposure and hypertension. Any future VA opinion should address this theory of entitlement. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from a mental health clinician regarding whether it is at least as likely as not that the Veteran’s PTSD aggravated his nicotine dependence or addiction beyond its natural progression. The opinion is to show appropriate consideration of the relevant evidence, to include the October 2015 private psychological test report (received November 2015). If aggravation is found, the examiner should state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. 2. Only after completing #1, obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of any respiratory disability. The examiner is to provide an opinion whether any current respiratory disability is at least as likely as not (1) proximately due to the Veteran’s service-connected PTSD, or (2) aggravated beyond its natural progression by his service-connected PTSD. In this regard, the examiner must consider the Veteran’s contention that his COPD is secondary to his service-connected PTSD. The Veteran’s specific assertion is that his PTSD caused or aggravated his smoking, which in turn caused his COPD. The examiner should be aware that the Board has instructed the RO to obtain an opinion from a mental health clinician regarding whether the Veteran’s PTSD aggravated his nicotine dependence or addiction. The examiner is to consider this opinion as part of his/her analysis.   3. Additionally, obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s hypertension. The examiner is to provide an opinion on the following: (a.) Whether the Veteran’s hypertension is at least as likely as not related to in-service herbicide agent exposure. (b.) Whether the Veteran’s hypertension is at least as likely as not (1) proximately due to service-connected disability (in particular, PTSD or diabetes), or (2) aggravated beyond its natural progression by service-connected disability (in particular, PTSD or diabetes). (Continued on the next page)   The opinion is to appropriately considered the relevant evidence, to include the favorable evidence referenced by the Veteran’s attorney in his May 2018 substantive appeal, in particular, evidence suggesting a relationship between PTSD and hypertension, and between herbicide exposure and hypertension. A comprehensive rationale is to be provided. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. López, Associate Counsel