Citation Nr: 18156012 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-44 125 DATE: December 6, 2018 ORDER Entitlement to service connection for atherosclerotic cardiovascular disease (ACVD) is granted. Entitlement to a rating of 30 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam from November 1968 to November 1971, and exposure to herbicide agents, to include Agent Orange, is presumed. 2. The Veteran has been diagnosed with ACVD, which is listed in 38 C.F.R. 3.309(e), as a disease included within ischemic heart disease. 3. Since the beginning of the appeal period, the Veteran’s PTSD has been manifested by symptoms such as suspiciousness, anxiousness, a desire to avoid social interactions, and mild memory loss resulting in an overall disability picture that more nearly approximates: occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally performing satisfactorily, with routine behavior, self-care and conversation normal). CONCLUSIONS OF LAW 1. Reasonable doubt being resolved in favor of the Veteran, the Veteran’s ACVD is presumed to have been incurred in his active military service. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to an initial rating of 30 percent, but no higher, for service-connected PTSD have been met for the entire period covered by the claim. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 through November 1971. The Veteran had service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) from an October 2015 regional office (RO) rating decision, which granted service connection for PTSD and assigned an initial 10 % rating effective April 21, 2015; and denied service connection for the Veteran’s atherosclerotic cardiovascular disease. 1. Entitlement to service connection for atherosclerotic cardiovascular disease (ACVD). The Veteran asserts that his ACVD is the result of being exposed to herbicide agents, specifically agent orange, while serving in Vietnam. A "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116 (f) (2012); 38 C.F.R. § 3.307 (a)(6)(iii) (2017). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (d)(6)(i) (2017). The presumption requires the Veteran's actual presence in Vietnam, inclusive of the inland waterways of Vietnam. Haas v. Peake, 525 F.3d 1168 (2008). The Veteran served in the Republic of Vietnam during the requisite time period indicated above, and therefore his exposure to Agent Orange is presumed. One of the diseases for which a presumption can be granted is ischemic heart disease. 38 C.F.R. 3.309(e) (2017). Ischemic heart disease includes, but is not limited to, acute, subacute, 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). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. See 38 C.F.R. § 3.309 (e), Note 3 (2017). It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2017). The Veteran was afforded a VA examination in October 2015. The examiner noted that the Veteran had been diagnosed with moderate atherosclerotic cardiovascular disease in 2006. During that examination the examiner noted that the Veteran’s heart condition would not qualify within the generally accepted medical definition of ischemic heart disease. However, under 38 C.F.R. 3.309(e), ACVD is one of the diseases that is included within the meaning of ischemic heart disease. Moreover, the Veteran’s private physician found in March 2016 that the Veteran had a current total calcium score is 653 which correlates to extensive plaque burden and very high cardiovascular disease risk. Additionally, it is noted that the veteran began taking a statin medication and a daily asprin daily in March 2016. Given the medical record, and the clear progression of the veteran’s symptoms, we resolve all doubt in favor of the Veteran. Thus, the Veteran meets the regulatory definition for ischemic heart disease. Given that the Veteran is presumed exposed to Agent Orange, service connection for ACVD is warranted. Accordingly, resolving reasonable doubt in favor of the Veteran, service connection is granted. 2. Entitlement to an initial rating in excess of 10 percent for service-connected posttraumatic stress disorder (PTSD). The Veteran asserts that his PTSD warrants a higher initial disability rating based on his symptoms of anxiousness, suspiciousness, mild memory loss, and his desire to avoid social functions including seeing his family and friends. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1 (2017). Symptoms listed in VA’s Rating Schedule for mental disorders are not intended to constitute an exhaustive list, but rather are to serve 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). The Veteran’s service-connected PTSD has been initially rated as a 10 percent disabling under the general Rating Schedule for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Under the Rating Schedule, a 10 percent evaluation is warranted where the evidence shows occupational and social impairment due to mild or transient symptoms which decrease work efficiently and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent disability rating is warranted when the evidence shows occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally performing satisfactorily, with routine behavior, self-care and conversation normal) due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where the evidence shows 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 where the evidence shows 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 an 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 and place, memory loss for names of close relatives, own occupation, or own name. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. Use of such terminology permits consideration of items listed as well as other symptoms, and contemplates the effect of those symptoms on the claimant’s social and work situation. See Mauerhan. Because a claimant may experience distinct degrees of disability over the course of a claim that might result in different levels of compensation separate disability ratings can be assigned for separate periods of time, VA may assign "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (2017). All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2017). It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the Veteran is competent to report that which he has perceived through the use of his senses, including his PTSD symptoms. See 38 C.F.R. § 3.159 (a)(2) (2017); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). The claims file includes an August 2015 VA examination. The examiner reported that the Veteran had no problem working before he retired and that the Veteran was gainfully employed as a chiropractor for most of his life. The examiner also noted that there is no indication that the Veteran receives treatment for his PTSD or any other mental health condition at the VA or with a private provider. The Veteran submitted multiple statements discussing his PTSD symptoms. In his notice of disagreement filed in July 2016, the Veteran reported that he fears large gatherings and events, like sporting events, because he fears a terrorist attack. He specifically spoke about the fear of people their one moment and then killed the next by a terrorist attack. Further, the Veteran reports that his symptoms have gotten worse since he retired from his job. In the Veteran’s Form 9, submitted in August 2016, the Veteran claimed that he retired because of his feelings of anxiousness and depression in connection with his thoughts about service in Vietnam. The Veteran further reported that he has mild memory loss, that he avoids events, and no longer likes visiting friends and family. In his Form 9, the Veteran specifically stated that his mild memory loss, his anxiousness, and his suspiciousness contributed to his decision to retire. Based on the evidence of record, the Board finds that the Veteran’s PTSD symptoms, taken collectively, more nearly approximate the 30 percent rating criteria. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). Overall, the Veteran’s PTSD is manifested by symptoms of suspiciousness and anxiousness and a desire to avoid social situations and visit with friends and family. Further, the Veteran’s PTSD symptoms and mild memory loss contributed to his decision to retire. As such, the Board finds that the criteria for the assignment of a 30 percent rating have been more nearly approximated for the entire period covered by this claim. The Veteran is competent to report these observable symptoms and there is no reason to doubt his credibility in this regard. Likewise, the evidence has never shown a consistent pattern of behavior commensurate with the criteria for the assignment of a 50 percent rating. The Veteran has not displayed or reported having panic attacks, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, or difficulty in establishing and maintaining effective work and social relationships. The overall disability picture does not meet or approximate the criteria for the assignment of a rating in excess of 30 percent at any time covered by this claim.   Thus, resolving reasonable doubt in the favor of the Veteran, entitlement to an initial rating of 30 percent, but not higher, for the service-connected PTSD is warranted for the entire period covered by this claim. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Shelton, Law Clerk