Citation Nr: 18152016 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 07-18 699 DATE: November 20, 2018 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date of December 22, 2004, and no earlier, for the award of service connection for peripheral artery disease (PAD) of the right leg, is granted. Entitlement to an effective date of December 22, 2004, and no earlier, for the award of service connection for PAD of the left leg, is granted. REMANDED Entitlement to service connection for a left eye disability, to include as secondary to a service-connected disability is remanded. Entitlement to an effective date prior to March 26, 2009, for the increased 60 percent rating and prior to April 28, 2014, for the increased 100 percent rating for coronary artery disease (CAD) is remanded. Entitlement to an initial compensable evaluation for scar, residual of coronary artery bypass graft associated with CAD, to include whether a separate compensable rating is warranted under Diagnostic Code 7804, is remanded. Entitlement to an effective date prior to April 28, 2014, for basic eligibility to Dependent's Educational Assistance (DEA) is remanded. Entitlement to an effective date prior to April 28, 2014, for the award of special monthly compensation (SMC) based on housebound criteria is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s PTSD has been productive of such symptoms to include, nightmares, insomnia, irritability, anger, hypervigilance, exaggerated startle response, intrusive thoughts, and disturbances of motivation and mood; at no time has PTSD been productive of occupational and social impairment with deficiencies in most areas. 2. VA received the Veteran’s informal claim for circulation problems (PAD) of the right and left leg on December 22, 2004, and the formal claim for benefits was received on January 20, 2005; affording the Veteran all reasonable doubt, the Veteran had PAD of the right and left leg at the time of filing the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.159, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for an effective date of December 22, 2004, and no earlier, for the award of service connection for PAD of the right leg have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 3. The criteria for an effective date of December 22, 2004, and no earlier, for the award of service connection for PAD of the left leg have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The matters were most recently before the Board in July 2017 and remanded for further development. The RO awarded service connection for hemi-central vein occlusion with macular edema in the right eye in an August 2018 rating decision; the issue on appeal has been recharacterized accordingly. Entitlement to an initial rating in excess of 50 percent for PTSD The Veteran’s PTSD is currently rated at 50 percent, pursuant to 38 C.F.R. § 4.130, DC 9411. All psychiatric disorders are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating contemplates 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 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; memory loss for names of close The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that “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.” The Federal Circuit further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. Thus, “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in most areas.” Id. at 118. As such, the Board will consider both the Veteran’s specific symptomatology as well as the occupational and social impairment described in the general rating formula to determine whether an increased evaluation is warranted. After carefully reviewing the record, including all relevant VA examination reports and outpatient clinical notes, the Board finds that an initial rating in excess of 50 percent is not warranted as the preponderance of the evidence is against a finding that the Veteran’s PTSD has been productive of occupational and social impairment with deficiencies in most areas. More specifically, the Veteran’s psychiatric symptomatology has not been shown to be productive of the symptoms referenced by the 70 percent rating criteria, or ones of similar severity. See Vazquez-Claudio, 713 F.3d at 118. The relevant VA examination reports of record (dated in March 2011 and September 2017) reflect the examiners’ determinations that the Veteran’s psychiatric symptoms have been not productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. Neither examiner found that PTSD symptoms caused total social and occupational impairment. Notably, on examination in 2011, while the Veteran endorsed intrusive thoughts, irritability, nightmares, avoidance behaviors, insomnia, hypervigilance, weekly panic attacks, and exaggerated startle response, he was neat and his affect was full. His thought process was linear and goal directed. His insight was fair to good. He was oriented in all spheres. Though he complained of hearing voicing calling him and saw shadows, these were not reported in 2017. There was no suicidal or homicidal ideation found. On VA examination in September 2017, the Veteran denied any major changes since his initial PTSD exam. He again reported irritability, intrusive thoughts, avoidance behavior, hypervigilance, exaggerated startle response, and insomnia. The Veteran reported that he got along with his wife and family and had acquaintances that he spoke to a couple times a month. The Veteran reported only some mild memory loss, such as forgetting names, directions or recent events. He presented adequately groomed. His thought process was logical. There was no abnormal thought content. He denied suicidal and homicidal ideation. There were no auditory or visual hallucinations. He was oriented in all spheres. The Board has also reviewed the Veteran’s outpatient psychiatric treatment records, which are broadly consistent with the disability picture outlined in the Veteran’s VA examination reports, discussed above. In that regard, VA treatment records dated throughout the appeal period show the Veteran has consistently reported hypervigilance, intrusive thoughts, irritability, nightmares, and avoidance behaviors; however, his speech was routinely normal and his thought process was goal directed. Moreover, he has consistently denied suicidal and homicidal ideation and his PTSD was often considered stable. Insight and judgment ranged from limited, to fair, to good. There were some fleeting paranoid ideations and auditory and visual hallucinations in 2005, but they have not been persistent throughout the appeal period. See e.g.. April 2007, May 2007, May 2008, November 2009, March 2010, December 2010, February 2011, October 2013, December 2013, April 2014, June 2014, August 2014, December 2015, March 2017, October 2017, March 2018, and July 2018 . The Board recognizes that the Veteran believes he is entitled to a higher rating for his psychiatric symptomatology. To that end, the Board has carefully considered his lay statements in support of his claim, recognizing that the Veteran is competent to report his symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges, for example, the Veteran’s assertions that he spends most of his time alone as result of his PTSD symptoms, to include, but not limited to anxiety, anger, depression, irritability, sleeplessness, hypervigilance, avoidance behaviors, and exaggerated startle response. Nonetheless, after reviewing these statements, the Board finds that they do not reflect symptomatology consistent with most of the symptoms listed in the 70 percent rating criteria, nor are they representative of other symptoms of similar severity, frequency, and duration. Moreover, the VA examiners’ findings with respect to the Veteran’s symptoms are highly probative, as they reflect the objective conclusions of a trained medical professional. In sum, the weight of the competent medical and lay evidence simply does not show that the symptoms listed in the 70 percent criteria, or ones of similar severity, have been demonstrated. Any difficulty in adapting to stressful circumstances or inability to establish and maintain effective relationships are provided for in the current 50 percent rating. Despite complaints of feeling anger, he has not shown difficulties with impulse control. While the 2011 VA examiner noted the Veteran washed his hands frequently, it did not affect his ability to function independently. Accordingly, having considered all relevant evidence, the Board finds that the weight of the evidence is therefore against the claim for an initial rating in excess of 50 percent. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. Therefore, the claim is denied. Entitlement to an effective date prior to April 23, 2014, for service connection for PAD of the right and left leg. The Veteran seeks an effective date earlier than April 23, 2014, for the award of service connected for PAD of the right and left leg. Generally, the effective date for an award of disability compensation based on an original claim for direct service connection is the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1) (2012); 38 C.F.R. § 3.400 (b)(2)(i) (2017). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a). For claims received prior to March 24, 2015, any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155. An application is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p); Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. §§ 3.1 (p), 3.155(a); Servello v. Derwinski, 3 Vet. App. 196 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. A review of the evidence shows that the Veteran submitted an informal claim for service connection for circulation problems of the right and left leg on December 22, 2004. The Veteran then filed a formal claim for the same benefits on January 20, 2005. The Board notes that service connection for CAD has been in effect since February 2004. While the VA examiner indicated in April 2018 that the exact date of onset of PAD was not known; previously, in an August 2017 addendum opinion, the VA examiner opined that the Veteran’s PAD had it onset prior to the April 2014 diagnosis. The examiner reasoned that records revealed the Veteran had long standing CAD with a stent placed in 2000 and that medical literature supported the definite and strong correlation between PAD and CAD. Thus, given the Veteran’s well documented and long-standing CAD prior to 2014, it was likely that the Veteran’s PAD was present prior to 2014. Resolving any reasonable doubt in favor of the Veteran, the Board finds that as the exact date of onset of PAD was unknown given that the Veteran was not afforded an examination earlier in the appeal process and there is a correlation between his CAD, which predated his PAD of the right and left leg, an earlier effective date of December 22, 2004, the date of the informal claim, but not earlier, for the grant of service connection for PAD of the right and left leg, is warranted. REASONS FOR REMAND Entitlement to service connection for a left eye disability, to include as secondary to a service-connected disability is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a left eye disability because no VA examiner has opined whether left eye ocular hypertension and glaucoma was aggravated by the Veteran’s service-connected diabetes mellitus and/or hypertension. Notably, in an April 2014 VA opinion, the examiner opined ocular hypertension was not caused by diabetes mellitus. The examiner failed to address aggravation. In July 2018 VA opinion, the VA examiner opined ocular hypertension and glaucoma were not caused by or the result of the Veteran’s service-connected hypertension. The examiner did not address whether such conditions were aggravated by his hypertension. Such opinions must be sought. Entitlement to an initial compensable evaluation for scar, residual of coronary artery bypass graft associated with CAD, to include whether a separate compensable rating is warranted under Diagnostic Code 7804; entitlement to an effective date prior to March 26, 2009, for the increased 60 percent rating and prior to April 28, 2014, for the increased 100 percent rating for CAD; entitlement to an effective date prior to April 28, 2014, for basic eligibility to DEA; and entitlement to an effective date prior to April 28, 2014, for the award of SMC based on housebound criteria are remanded. Regarding these issues, the Veteran submitted a timely notice of disagreement in March 2015 with a February 2015 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Entitlement to TDIU is remanded. In the instant case, the Board has assigned an effective date of December 22, 2004, for the award of service connection for PAD of the right and left legs. The RO has yet to implement the earlier effective date and assign the initial disability ratings. The Veteran seeks entitlement to service connection for a left eye disability, which has been remanded for further development. Finally, the Board has remanded claims pertaining to increased rating for a scar and earlier effective dates for increased ratings for CAD, basic eligibility for DEA, and the award of SMC based on housebound criteria to satisfy a procedural defect. Because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to TDIU, the TDIU claim must be remanded as well. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to determine the etiology of the left eye glaucoma and ocular hypertension. The examiner must opine whether it is at least as likely as not that left eye ocular hypertension and/or glaucoma are aggravated (beyond the natural of the progression the disease) by the Veteran’s service-connected hypertension and/or diabetes mellitus. 2. After implementing the effective date of December 22, 2004, for the award of service connection for PAD of the right and left leg and assigning the initial disability ratings, as well as the readjudication of the issue of service connection for a left eye disability, the RO should readjudicate the issue of entitlement to TDIU. If upon completion of the above action, the claims remain denied, the case should be returned to the Board after compliance with appellate procedures. 3. Send the Veteran and his representative a statement of the case that addresses the issues of: entitlement to an initial compensable evaluation for scar, residual of coronary artery bypass graft associated with CAD, to include whether a separate compensable rating is warranted under Diagnostic Code 7804; entitlement to an effective date prior to March 26, 2009, for the increased 60 percent rating and prior to April 28, 2014, for the increased 100 percent rating for CAD; entitlement to an effective date prior to April 28, 2014, for basic eligibility to DEA; and entitlement to an effective date prior to April 28, 2014, for the award of special monthly compensation based on housebound criteria. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. 4. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. L. Wallin, Counsel