Citation Nr: 18152387 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-21 353 DATE: November 21, 2018 ORDER Entitlement to service connection for coronary artery disease is granted. Entitlement to an initial rating of 70 percent, and no higher, for PTSD with alcohol use disorder, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during his active military service and has a current diagnosis of coronary artery disease. 2. For the entire rating period, service-connected PTSD with alcohol use disorder results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; however, total social and occupational impairment has not been demonstrated by the record. 3. The Veteran’s service-connected PTSD with alcohol use disorder does not preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for coronary artery disease as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for establishing a 70 percent evaluation, but no higher, for PTSD with alcohol use disorder have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018). 3. The criteria for a TDIU rating solely due to service-connected PTSD with alcohol use disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to May 1970, to include service in the Republic of Vietnam. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from October 2012 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana (RO). Notices of Disagreement were submitted in December 2012 and November 2013; Statements of the Case were issued in May 2015; and VA Forms 9 were received in June 2015. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2018). This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. With respect to the claims herein decided, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2018); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 1. Entitlement to Service Connection for Ischemic Heart Disease (Coronary Artery Disease) Generally, Veterans exposed to Agent Orange or other listed herbicide agents in Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed service-connected for certain conditions, including ischemic heart disease (including coronary artery disease), even if there is no record of such disease during service, so long as the condition has manifested to a degree of 10 percent or more. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e) (2018). As defined by 38 C.F.R. § 3.309 (e), ischemic heart disease includes, but is not limited to: acute, sub-acute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal’s angina. 38 C.F.R. § 3.309 (e). The Veteran contends that he has a current heart condition, to include ischemic heart disease and coronary artery disease, as a result of in-service herbicide agent exposure. The Veteran’s DD Form 214 and personnel records show that he had active service in the Republic of Vietnam between 1969 and 1970. He is, therefore, presumed to have been exposed to an herbicide agent in service. The remaining question for consideration here is whether the Veteran has a current ischemic heart disease/CAD diagnosis. In this case, the Veteran’s longtime treating private cardiologist, Dr. W.L., of the Cardiovascular Institute of the South, has completed two Heart Conditions Disability Benefits Questionnaires on behalf of the Veteran in which he confirmed a coronary artery disease diagnosis. See, e.g., November 2011 and July 2016 DBQs. Dr. W.L. expressly noted that such diagnosis met the criteria for ischemic heart disease; that it required continuous medication; and that it had been confirmed by a CT angiogram showing moderate stenosis and calcification of the left anterior descending artery. Other private treatment records from the Cardiovascular Institute likewise show symptomatic (e.g., shortness of breath, fatigue, dizziness) coronary artery disease diagnoses. See, e.g., January 2015 Progress Notes from Cardiovascular Institute. The Board acknowledges that a November 2014 VA examiner opined that the Veteran’s CAD had not yet progressed to ischemic heart disease because he did not have “compensable” symptoms such as shortness of breath and fatigue. However, subsequent private treatment records clearly document CAD-related dyspnea, fatigue, and dizziness and reflect that the Veteran is on continuous medication for his CAD. In short, service personnel records confirm that the Veteran served in the Republic of Vietnam during his active military service. Additionally, the Veteran has a current diagnosis of coronary artery disease from Dr. W.L. Accordingly, service connection for ischemic heart disease is granted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2018). 2. Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran has challenged the initial rating assigned for PTSD by seeking appellate review. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” rating. Fenderson, 12 Vet. App. at 126. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran has been assigned an initial 30 percent disability rating for the period prior to November 17, 2014, and a 50 percent rating thereafter under Diagnostic Code 9411 for PTSD. 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is assigned 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 that is 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 worklike setting); and inability to establish and maintain effective relationships. A 100 percent disability rating is assigned 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, or for the veteran’s own occupation or name. In evaluating psychiatric disorders, the Board is mindful that the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are 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 “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013). “A veteran may only qualify for a given rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Further, “§ 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.” Factual Background Initially, there is conflicting evidence of record with regard to the severity of the Veteran’s PTSD. In a May 2011 statement, the Veteran’s wife reported that the Veteran was very moody and “flew off the handle” for no reasons sometimes. She related an incident in which the Veteran was choking her in his sleep during a nightmare. The Veteran underwent a VA examination in July 2011; at that time, he reported having a “fine” relationship with his wife and a “great” relationship with his daughter. Affect was normal; mood was depressed and anxious; and thought process and content were unremarkable. He reported having “terrible” sleep since retirement. There were no panic attacks, suicidal/homicidal ideation, obsessive rituals, or deficiencies with memory. In an August 2011 statement, the Veteran reported PTSD symptoms including: night sweats, flashbacks, sleeplessness, increased startle response, difficulty falling asleep and staying asleep, irritability and anger outbursts, and loneliness. He stated that he had a “short fuse.” In a November 2012 statement, the Veteran’s wife stated that the Veteran was short-tempered, had no patience, was rude, and had road rage. She stated that she had to fight him off of her while he was in the midst of a nightmare. In a December 2012 statement, the Veteran reported nightmares, night sweats, being afraid to be alone in the dark, depression, mind wandering, thoughts of suicide (“then I remember that I have family that loves me…”), short patience, avoidance of crowds. He stated that he was sometimes scared to get behind the wheel “as of lately I’ve had thoughts of running over other cars and especially other drivers.” He states, “I try to live minute to minute and day to day to try to get through the rest of my life somehow as best as I can without harming myself or someone else.” Contemporaneous VA treatment records (see, e.g., July 2011 Mental Health Note) reflects that the Veteran’s PTSD were “worsening.” He reported increased nightmares, flashbacks, and some hypervigilance. In March 2012, he reported an extreme increase in intrusiveness of memories in daytime and nighttime; difficulty falling asleep and staying asleep; increased irritability; and increased avoidance with his wife. Other VA mental health treatment records dated from 2011 to 2012 reflect that the Veteran had been on Lexapro for the last 5 to 6 years and he felt “almost back to normal.” He reported that he was currently married to his wife of 40 years and that he enjoyed time off with her. He spoke of future travel plans. He hoped to see his grandchildren over the holidays. He endorsed nightmares, irritability, flashbacks, and some hypervigilance. GAF scores ranged from 60 to 65. Memory was intact; mood was depressed; affect was appropriate; there were no suicidal or homicidal ideations; judgement and insight were intact; and there was no psychosis. He reported that he had been injured on the job years prior. He reported some loss of interest and loss of motivation (less than half the time). He was goal-oriented. VA treatment records from 2014 reflect complaints of increased depression, moodiness, irritability, road rage, and increased nightmares. The Veteran underwent a VA PTSD examination in November 2014. At that time, the examiner described occupational and social impairment with reduced reliability and productivity. The Veteran described having a rocky marriage with his wife of 43 years; he stated that they argued frequently due to increased feelings of aggravation. He stated that she was frustrated with his increasing reluctance to socialize with other people. He reported having two close friends with whom he had regular contact. He endorsed ongoing intrusive thoughts; depression; sleep difficulty; persistent negative mood and irritability; concentration deficits; and passive thoughts about death (although he denied suicidal and homicidal ideations). Objectively, symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances in mood and motivation. The Veteran underwent a VA PTSD examination in June 2018. At that time, the examiner described 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. The Veteran described his relationship with his wife and daughter as “fine.” He enjoyed spending time with his grandchildren and traveling with his wife. He reported having 5 or 6 close friends and seeing them several times a week. In his spare time, he worked in the yard or piddled in his shop. He reported intrusive thoughts, nightmares, feeling depressed/angry often, verbal outbursts, strong startle response, and difficulty recalling the content of conversations. He denied homicidal or suicidal ideation. Objectively, symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances in motivation and mood. VA treatment records dated from 2014 to 2018 reflect affect ranging from broad to blunted; thoughts were logical. He reported moments of anger with difficulty calming down. He reported depressed, irritable, dysthymic and euthymic moods. He reported spending a great deal of time with his grandson outdoors. He denied suicidal ideation. He was cooperative and reasonable and grooming was appropriate. In August 2015, he did report an episode of road rage, but otherwise denied trying to end his life or cause an accident. He voiced willingness to abstain from any reckless behavior. He talked about enjoying time with his family and his grandchildren. In May 2016, he reported having two anger outbursts with road rage and a couple of irritable moments with his wife. In September 2016, he reported some passive thoughts of suicide but these passed quickly and he denied intent. He reported being depressed about medical issues. He agreed that some things were going well, e.g., he bought a new truck and had a cruise planned for the following week. In January 2017, he reported being worried about his adult children, struggles with people and the public, and his road rage. Mood was more “down” and “good.” He reported taking some camping trips and enjoying being with his children. In March 2017, he reported an effort to decrease his decrease his anger outbursts and road rage. He also reported doing projects around the house. A July 2017 VA mental health note indicated “chronic” irritability, most often with road rage and verbal anger while driving. In November 2017, he again reported an episode of road rage and thoughts of hurting the driver. Analysis Upon careful review of the evidence of record, the Board finds that the Veteran’s PTSD with alcohol abuse symptomatology more nearly approximates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In other words, resolving all doubt in favor of the Veteran, the evidence supports a 70 percent rating for the entire rating period on appeal. 38 U.S.C. § 5107; Gilbert, supra. Specifically, the evidence of record shows that the Veteran’s service-connected psychiatric disorder has been predominately manifested by symptoms of chronic impaired impulse control, anxiety, near continuous depression, chronic sleep impairment, chronic irritability, intrusive thoughts and flashbacks, occasional suicidal ideation, difficulty with concentration, mildly impaired memory, blunted affect, and disturbances of motivation and mood. While several of the listed symptoms are consistent with the 30 or 50 percent rating criteria, the Board finds, in particular, that the symptoms of ongoing impaired impulse control (e.g., road rage and verbal outbursts), near-continuous depression, and occasional suicidal ideation – all of which are well-documented by the VA mental health treatment records, as well as the Veteran’s own competent and credible statements and those of his wife – are consistent with the frequency, severity, and duration of those symptoms contemplated by the 70 percent rating criteria under DC 9411. See Vazquez-Claudio, supra. Thus, collectively considering and weighing the VA treatment records (dated 2011 to 2018), the VA examination findings, and the Veteran’s own lay statements, and in resolving reasonable doubt in his favor, the Board finds that a higher initial 70 percent rating is warranted for the entire rating period. However, the Veteran has not met or more nearly approximated the criteria for a higher 100 percent disability rating for his acquired psychiatric disorder at any time during the appeal period. See 38 C.F.R. § 4.130. Specifically, the record does not indicate total occupational and social impairment due to symptoms of such a severity as described for a 100 percent evaluation. With respect to social impairment, the Veteran has maintained relationships with his wife of 41 years, his adult child, and his grandchildren for the entire appeal period and according to his own narratives, he has close friends and enjoys travel and camping on occasion. Consequently, he is still able to establish and maintain relationships and, therefore, does not have total social impairment. With respect to occupational impairment, the record reflects that the Veteran retired on his account physical disabilities in 2007. While the Veteran no longer works, as explained in the TDIU analysis below, the record does not show that his inability to maintain employment is solely the result of PTSD, nor has any mental health examiner ever indicated that the severity of his PTSD symptoms approximates total occupational impairment. Therefore, total occupational impairment has not been demonstrated here. Moreover, the Veteran has not exhibited symptomatology of such severity as indicated for a 100 percent rating (i.e. gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; and memory loss for names of close relatives, or for the Veteran’s own occupation or name). Although the Veteran reported some suicidal ideation, such thoughts have been noted as occasional in frequency and passive without intent. Likewise, while the Veteran has reported several incidents of road rage over the course of the appeal period, no mental health professional or examiner has ever deemed him to be a persistent threat to himself or others in this capacity. In fact, the contemporaneous mental health records consistently show that the Veteran voiced a willingness to abstain from such behavior and that he would not act on thoughts to hurt himself in this way; other records indicate that the Veteran stopped driving all together. See, e.g., November 2015 VA Mental Health Note. Thus, a persistent danger of self-harm or harm to others, consistent with the 100 percent rating criteria, has not been shown by the record. Moreover, while he has been shown to have memory loss, this has been characterized as mild in nature and does not rise to the level severity contemplated by the 100 percent rating. In short, there is simply not a showing of PTSD symptoms listed for the 100 percent disability rating, or symptoms that are of similar duration, frequency, and severity, that would warrant finding that the Veteran is totally occupationally and socially impaired. See Vazquez-Claudio, supra. Accordingly, the Board finds the that Veteran’s PTSD symptoms are comparable indicators of the type of occupational and social impairment contemplated in the criteria provided for a 70 percent rating under the General Rating Formula, but no more. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. 3. Entitlement to a TDIU In October 2016, the RO granted a TDIU rating based on the Veteran’s prostate cancer residuals, effective from June 7, 2016. In September 2016, the Veteran submitted various VA Forms 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and asserted that he was unable to obtain gainful employment as a result of his diabetic neuropathy and other service-connected disabilities. In September 2018, the RO awarded a TDIU rating effective from May 22, 2015 based on his service connected diabetes and associated bilateral upper and lower extremity radiculopathy. Notably, the Veteran is in receipt of a 100 percent rating for prostate cancer residuals, effective from October 30, 2014, to April 1, 2016, as well as SMC pursuant to 38 U.S.C. § 1114 (s), effective from November 17, 2014, to April 1, 2016, and from June 7, 2016. The Court has held that total disability rating due to individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Consequently, the Board must address whether a TDIU is warranted solely due to the Veteran’s service-connected PTSD. In doing so, the Board acknowledges that the Veteran has already been awarded a traditional TDIU effective in March 2015; however, as previously mentioned, that was granted based on other service-connected disabilities and, therefore, does not preclude the Board from considering TDIU solely related to the Veteran’s PTSD for the entire period. TDIU is granted where a Veteran’s service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155 (a) that an informal claim “identify the benefit sought” has been satisfied, and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). After considering the evidence, the Board finds that the Veteran fails to demonstrate at any time during the appeal that the Veteran has been unable to obtain or sustain a substantially gainful occupation due solely to his service-connected PTSD with alcohol abuse. In this case, the record reflects that the Veteran is a high school graduate with one year of college education and that retired as a tool operator with an oil company in 2007. Multiple VA examination and treatment reports based on the Veteran’s own narratives show that he retired as a result of orthopedic injuries sustained on the job in 2007. Records from the Social Security Administration (SSA) indicate that the Veteran was awarded disability benefits on account of “disorders of muscle ligament and fascia.” The contemporaneous SSA medical records show that he injured his knee on the job in 2007; there is no mention of PTSD or service-connected physiatric symptomatology in the accompany SSA application/paperwork. As noted, the Veteran underwent VA PTSD examinations in 2011, 2014, and 2018. The 2011 examiner did not specifically comment on the Veteran’s employability other than noting his 2007 retirement due to a knee injury. The 2014 VA examiner noted that the Veteran’s PTSD symptomatology resulted in occupational and social impairment with reduced productivity, but did not find the Veteran to be totally occupationally impaired or otherwise unable to obtain to obtain/maintain gainful employment due to such symptoms. Likewise, while the 2018 VA examiner found occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, the examiner did not opine that the Veteran was unable to work due to his service connected PTSD. Upon consideration of the evidence above, the Board affords great probative weight to the comprehensive VA examination reports and opinions which are based on a detailed assessment of the severity of the Veteran’s PTSD and indicate that he has some but not total occupational impairment as a result of his PTSD symptoms. Moreover, the record shows that the Veteran’s inability to work, especially for the period prior to March 2015, has been attributed to his knee injury which is not service connected. Significantly, the Veteran has so asserted himself most consistently in the record. Thus, the Board finds that a TDIU based solely on the Veteran’s PTSD is not warranted for any period on appeal. The preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert supra. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Hoeft, Counsel