Citation Nr: 18152490 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-25 855 DATE: November 23, 2018 ORDER A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. An effective date prior to January 5, 2015, for the grant of service connection for PTSD is denied. Service connection for hypertension is denied. The application to reopen a claim for service connection for residuals of cerebral vascular accidents (CVAs) is granted. A total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for residuals of CVAs. FINDINGS OF FACT 1. The Veteran had active service from March 1968 to March 1971, to include Vietnam War service from March 1969 to March 1970. 2. Throughout the entire rating period on appeal, PTSD has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. 3. The Veteran filed an initial claim for PTSD in October 2009 but did not timely appeal the February 2010 rating decision which denied the claim. He filed a second claim for PTSD on January 5, 2015, which was untimely granted and forms the basis of the current effective date. 4. Hypertension is not causally or etiologically related to service, including as due to herbicide exposure. 5. The Veteran filed an initial claim for residuals of CVAs in October 2009 but did not timely appeal the February 2010 rating decision which denied the claim. Evidence received since the February 2010 denial is neither cumulative nor redundant of the evidence of record at that time and raises a reasonable possibility of substantiating the claim. 6. The Veteran’s service-connected disability rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for an effective date earlier than January 5, 2015, for the grant of a service connection for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 3. Hypertension was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1117, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309(2017). 4. New and material evidence has been received, the claim of entitlement to service connection for residuals of CVAs is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for PTSD Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Under DC 9411 and the General Rating Formula for Mental Disorders, a 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation for a psychiatric disability 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. Turning to the evidence, treatment notes, a VA examination report, and lay statements are all evidence of record detailing the Veteran’s PTSD symptomatology for the appeals period. The July 2015 VA examiner found that the Veteran experienced suspiciousness, chronic sleep impairment, short and long-term memory impairment, circumstantial and circumlocutory/stereotyped speech, difficulty maintaining relationships, impaired impulse control, and irritability with periods of violence. As a result, the examiner concluded the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. These symptoms were largely unchanged throughout the appeal period as evidenced by the Veteran’s subsequent treatment records. Though he was determined to be incompetent in a September 2016 rating decision, the VA examiner was aware his wife handled his financial affairs when supporting a 70 percent rating. For example, in January 2016, the Veteran reported still having dreams about Vietnam with insomnia while seeking treatment for left shoulder pain. He was described as alert and oriented but admitted not seeking treatment from the mental health clinic in a while. In February 2016, he reported doing well on his medication which he had come to refill. He was again described as alert and oriented. He was noted to be cooperative, polite, and his speech was spontaneous and goal oriented. He further had no involuntary movements, no suicidal/homicidal ideation, plans or intentions, and he was negative for thought disorder or psychosis. He reported sleep apnea-like symptoms, and irritability during the day with increased memory problems. Although it is apparent that the Veteran has psychiatric symptomatology, it does rise to the level of a 100 percent disability as he is oriented, alert, and doing well on his medication. As such, the medical evidence does not support a 100 percent rating for PTSD. The Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of PTSD according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran’s PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which PTSD is evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Earlier Effective Date for PTSD The assignment of effective dates is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. If a claim is received within one year of a veteran’s separation from service, the effective date will be the date of separation from active duty or the date that entitlement arose. Otherwise, the effective date for an award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date that entitlement arose, whichever is later. The Veteran filed an initial claim for PTSD in October 2009 but did not timely appeal the February 2010 rating decision which denied the claim. Therefore, that claim became final. He filed a second claim for PTSD on January 5, 2015, which was untimely granted and formed the basis of the current effective date. As the February 2010 rating decision was final and January 5, 2015, is the date of the current claim. It is the latter of the dates (i.e. January 5, 2015) that is the effective date of the current claim. Therefore, the current effective date is correct and the appeal is denied. Service Connection for Hypertension Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are associated with herbicide exposure do not include hypertension. 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning first to direct service connection, the medical records reflect that the Veteran has been diagnosed with hypertension since 2003. Therefore, a current disorder is shown. As to an inservice incurrence, the STRs are negative for complaints of, treatment for, or a diagnosis of hypertension. The Veteran’s induction blood pressure ready was 128/76 and the separation reading was 118/78. Under VA standards, hypertension is defined as a diastolic blood pressure predominantly 90 mm. or greater and isolated systolic hypertension, predominantly 160 mm or greater. See 38 C.F.R. 4.104, DC 7101, Note 1. Therefore, hypertension was not noted in service and the second element of direct service connection has not been met. The Board next looks to hypertension as presumptively connected to either a chronic disease or AO exposure during his Vietnam War service. The Veteran easily meets the first requirement for chronic diseases because hypertension is an included disorder. As to the one-year presumption, hypertension was not diagnosed until 2003, nearly thirty years after discharge. Similarly, the medical evidence does not show continuous symptoms of hypertension since service separation. Therefore, the medical evidence does not support presumptive service connection based on chronicity and continuity. As to entitlement based on presumptive AO exposure, although the Veteran served in Vietnam during the applicable period, hypertension is not on the list of diseases entitled to service connection on an AO presumptive basis. Moreover, hypertension is expressly excluded from the list of symptoms related to ischemic heart disease under 38 C.F.R. § 3.309(e), Note 2. Therefore, the law does not support presumptive service connection based on AO exposure. Notwithstanding, the Veteran contends there is a direct link between AO exposure and hypertension. In support, he referenced an article from the National Academy of Sciences (NAS) about limited or suggestive evidence of an association between hypertension and AO exposure. However, this NAS finding does not rise to the level of at least as likely as not that there is a causal relationship. For definitional purposes only, according to the Miriam-Webster Dictionary, the definitions of limited (restricted), suggestive (indicative), and association (relationship) do not have the same meaning as 50 percent or more probability required to support direct service connection. The NAS article and, more importantly, the VA treatment records lack medical evidence to support the Veteran’s contended causal link between AO exposure and his hypertension. The only evidence asserting a nexus are lay statements from the Veteran who is not competent to provide an opinion regarding the etiology of his hypertension. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Without competent, medical evidence establishing a nexus, the record does not support such a finding and the appeal is denied. Accordingly, the preponderance of the evidence is against the claim such that the benefit-of-the-doubt rule is not applicable. New and Material Evidence to Reopen Residuals of CVAs Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Historically, the service connection claim for residuals of CVAs was denied in an unappealed February 2010 rating decision on the basis that the evidence did not establish that CVA residuals occurred in service nor were they aggravated or caused by service. The RO considered STRs containing March 1971 treatment for a head injury that rendered the Veteran unconscious. He did not submit any documentation constituting new and material evidence within the one-year appeal period and the decision became final. The Board must now determine whether new and material evidence has been received since the February 2010 decision to enable the reopening of this claim. Here, evidence added to the claims file since the final February 2010 decision includes a 2013 article supporting a causal link between head injuries and CVAs. This evidence is new as it was not of record at the time of the February 2010 rating decision. This evidence is material because it raises a reasonable possibility of substantiating the claim. The article addresses a situation similar to the Veteran’s regarding a head injury and indicated it could reasonably cause or aggravate strokes. Therefore, the claim is reopened so that it can be remanded for consideration of this new evidence. To this extent only, the appeal is granted. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Because the Veteran is service-connected for PTSD at 70 percent, he meets the requirements for a TDIU on a schedular basis under 38 C.F.R. 4.16(a). The next element involves the Board determining whether PTSD is severe enough to render him unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. His non-service connected disabilities, hypertension and CVAs cannot be considered in this analysis. As it relates to the Veteran’s unemployability, relevant factors include employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Veteran reported in 2008 VA treatment records that he had a high school diploma. He also reported working for a trailer company and a mill without specifying his job title. However, in 2010 he reported that he was last employed as a mechanic until the end of 2009. During his 2015, VA examination PTSD, he repeated having past employment as a mechanic and a technician. There is no information in the record regarding the Veteran’s temperament in the working environment but his wife reported that he could become argumentative suddenly without being triggered during the VA examination. A January 2015 VA treatment note indicated he was struck in the head after he “shut off his mouth” in November 2014. The examining psychologist at the time remarked that his judgment appeared minimal and insight limited. There are continuous complaints about irritability most recently reported in 2016 VA treatment notes. During the 2015, VA examination, the Veteran’s wife also reported that he could perform ADLs independently but that he needed assistance with household duties. She was responsible for managing his medications which he found difficult to do on his own. She also managed his finances because of errors that he made in the past. The VA examiner observed the Veteran unable to determine similarities between a dog and lion, or complete serial seven subtractions from 100 or additions from one. Ultimately, he performed the poorest on tasks requiring a working memory and executive functioning. The examiner concluded the Veteran had occupational and social impairment with deficiencies in most areas, such as work, judgment, thinking and/or mood. Also, that he needed continuous, multidisciplinary care. As a result of the VA examination, he was deemed incompetent to handle disbursement of funds in a September 2016 RD. Upon review of the disability picture, the Board finds that the Veteran’s service-connected PTSD precludes him from substantial and gainful employment. This disability is productive of increased irritability with periods of violence, poor short and long-term memory impairment and executive functioning, a medical finding of occupation and social impairment with deficiencies in work, judgment, thinking and/or mood (to include difficulty maintaining relationships, and impaired impulse control). Finally, he is unable to independently manage his medication or competently handle his personal affairs such as his VA benefit payments. Therefore, giving the Veteran the benefit of the doubt, service-connected PTSD renders him unable to secure and follow a substantially gainful occupation. Accordingly, the appeal is granted. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND With respect to residuals of CVAs, a new examination is needed to determine whether there is a causal link between his CVAs and in-service head injury. The Veteran is diagnosed with CVAs and his STRs record his involvement in a car accident resulting in head injury and a loss of consciousness in 1971. He supports his argument with an article linking CVAs and head injury. He has not previously been examined to assess the complete scope of entitlement theories and the evidence of record. Thus, a remand is warranted such that an examination may be obtained. The matter is REMANDED for the following actions: 1. Obtain any pertinent, outstanding VA and private treatment records not already of record in the claims file. 2. Schedule the Veteran for an examination to assess the nature and etiology of his residuals of CVAs. The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred. Any indicated studies should be performed, to include making sure the VA examiner takes the medical literature into consideration. In particular, the examiner is asked to offer an opinion as to the following: a. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s CVAs are etiologically related to active duty service, to include an in-service head injury. The rationale for all opinions must be provided. 3. Then, readjudicate the CVAs claim on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response before returning the matter to the Board for further appellate review. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dorian Hamilton