Citation Nr: 18156875 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 13-30 560 DATE: December 11, 2018 ORDER A disability rating of 50 percent, and no higher for posttraumatic stress disorder (PTSD) as of April 22, 2009, is granted. A disability rating in excess of 70 percent for PTSD after January 29, 2015, is denied. REMANDED Entitlement to service connection for a heart disability, to include as secondary to PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The evidence shows that the Veteran’s PTSD were productive of occupational and social impairment with reduced reliability and productivity as a result of depression, irritability, loss of interest, and difficulty establishing and maintaining effective relationships as of April 22, 2009. 2. The evidence does not show that the Veteran’s PTSD has been productive of total occupational and social impairment after January 29, 2009. CONCLUSIONS OF LAW 1. The criteria for a 50 percent disability rating for PTSD, and no higher, were met as of April 22, 2009, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 70 percent for PTSD after January 29, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from March 1986 to October 1996 and from March 2003 to July 2004, with service in Southwest Asia, for which he earned a Bronze Star. In September 2017, the Board sought an expert medical opinion through the Veterans’ Health Administration (VHA) with respect to the question of whether the Veteran’s heart disability resulted from his military service. The opinion was received in January 2018. The Board requested clarification of the opinion in March 2018, but has been unable to obtain the requested addendum opinion. Inasmuch as the information requested is still needed to adjudicate the claim, the Board will remand the claim in order to obtain it to fully and fairly adjudicate this issue. Entitlement to a disability rating in excess of 10 percent for PTSD prior to January 29, 2015, and in excess of 70 percent thereafter. The Veteran filed an appeal for increased disability rating for his PTSD in April 2009 and he was granted a 10 percent disability rating as of the date of that claim. A subsequent rating decision granted a 70 percent disability rating effective January 29, 2015. A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maxima available benefit is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the claim for a higher disability rating remains on appeal with respect to both rating periods. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155. Where there is a question as to which of two evaluations shall be applied, 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this instance, staged ratings were assigned for the Veteran’s PTSD. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication, warrants a 10 percent rating. Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning 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), warrants a 30 percent rating. 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, warrants a 50 percent rating. 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, warrants a 70 percent rating. 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, warrants a 100 percent rating. 38 C.F.R. § 4.130. The United States Court of Appeals for Veterans Claims (Court) has observed that the listed symptoms are examples of the type and degree of the manifestations of a mental disability required for a given disability rating, and that "the presence of all, most, or even some, of the enumerated symptoms" is not required to support a disability rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, it is not sufficient for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a veteran. Rather, "VA must engage in a holistic analysis" of the severity, frequency, and duration of the signs and symptoms of the veteran's mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). At a VA mental health treatment visit in May 2009 the Veteran reported symptoms of bad dreams, hypervigilance, exaggerated startle reflex, irritability, avoidance of crowds, poor sleep, and depression. He denied suicidal and homicidal ideation as well as hallucinations and delusions. He had normal and appropriate thought process, thought content, and memory. The provider diagnosed PTSD with a history of panic attacks. The Veteran was not interested in ongoing counseling or medication for his symptoms, opting to rely on his family support system and strong faith. A VA examination in September 2009 noted the Veteran’s struggle with mood and anxiety symptoms related to his in-service and his tendency to minimize the impact of his symptoms. He reported that he had recently had to retire because of his heart disability and his PTSD symptoms were getting worse without the distraction of work. Those symptoms included mood swings, irritability, insomnia, depression, and hyperarousal, all of which were constant in nature. The main functional impact was difficulty interacting with others. He reported having difficulty sleeping for many years, persistent recollections and distressing dreams, and difficulty controlling his anger and irritability. He was not receiving any treatment or psychotherapy. The examiner stated that the Veteran’s PTSD had no major impact on his employment or overall quality of life, with psychiatric symptoms which were not enough to interfere with social and occupational functioning. In his Notice of Disagreement filed in November 2009, the Veteran stated that he did not associate with anyone outside of his home and his wife complained that he had no life and was unwilling to go out to dinner or other places with her. He also reported that he had problems with his quick temper and inability to tolerate stupidity in other people. He noted that he was self-employed, but this become too stressful so he moved and has had difficulty finding work. A statement by the Veteran’s wife submitted in September 2010 included her description of the Veteran’s symptoms of PTSD. These included sleeplessness, anxiety, anger, forgetfulness, insecurity, paranoia, hyperstartle, combativeness, depression, procrastination, and denial of his symptoms. He exhibited a lack of trust and always seemed to rely on her to diffuse situations and keep him calm. A January 2015 mental health evaluation noted that the Veteran had symptoms including reduced activity, impaired sleep, depression, social withdrawal, irritability, suicidal ideation, fatigue, memory and cognitive impairment, poor self-esteem, less interest in sex, relationship problems, pain behaviors, helplessness, hopelessness, guilt, anxiety, and loss of employment opportunities. A January 2015 VA examination described the Veteran’s disability picture as one of occupational and social impairment with reduced reliability and productivity. Symptoms included depressed mood, anxiety, suspiciousness, near-continuous depression, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and suicidal ideation. After considering all of the evidence of record, with specific attention to the documents discussed above, the Board finds that the Veteran’s claim for increased disability ratings should be granted. Specifically, the evidence supports a 50 percent disability rating as of the date of claim, April 22, 2009, based on the statements of the Veteran and his wife that he had continual depression, chronic sleep impairment, suspiciousness, and disturbances of motivation and mood. This evidence supports a finding of occupational and social impairment with reduced reliability and productivity. However, the Board finds an evaluation higher than 70 prior to January 29, 2015 is not warranted. The Board finds that the weight of the totality of the relevant medical and lay evidence does not support a finding of deficiencies in most areas. For example, in May 2009, the Veteran had normal and appropriate thought process, thought content, and memory. The finds such competent evidence tends to weigh against findings deficiencies in judgment, thinking, or mood. Additionally, he noted that he was self-employed, but this become too stressful so he moved and has had difficulty finding work. The Board finds the now 50 percent rating compensates the Veteran for his reduced reliability and productivity. Socially, the Board notes the Veteran’s difficulties, to include as noted by a statement from his spouse that he is unwilling to go out to dinner or other places with her. The Board finds such is also contemplated by the 50 percent rating. Indeed, in early January 2015, the Veteran was noted to have relationship problems. The evidence does not support entitlement to a disability rating in excess of 70 percent after January 29, 2015, because he is not shown to be totally occupationally and socially impaired as a result of his PTSD. The Veteran maintains a relationship with his wife and is not shown to demonstrate gross impairment in thought processes or communication, or to have persistent delusions or hallucinations. He can attend to the activities of daily living and does not pose a danger to himself or others. Therefore, the Board finds that the competent and credible evidence weights against a 100 percent disability rating for PTSD. 38 C.F.R. § 4.130. REASONS FOR REMAND Entitlement to service connection for a heart disability. The Veteran seeks service connection for a heart disability which has resulted in a coronary artery bypass graft in December 2008 and a myocardial infarction in March 2009. It is his assertion that the heart disability was first manifested in service with abnormal electrocardiograms (EKGs), to include in 1998 (with Georgia National Guard) and again in February 2005 (less than one year after service separation) and chest pains that had their onset in service and have continued since service. He, his wife, and his representative have also asserted that the Veteran’s PTSD may have caused or aggravated his heart disability. The VHA expert opinion dated in January 2018 reviewed the Veteran’s service treatment records and noted that there were several machine-read electrocardiograms EKGs that indicated abnormal sinus rhythms. However, review of those EKGs by a human showed no evidence of abnormality. The expert noted that machine reading of EKGs can be affected by several factors, including body positioning or movement. In light of the normal findings on human review of the testing, the VHA expert offered the opinion that the Veteran’s heart disability was not manifested in service or within one year of service separation. The expert considered some of the recent studies regarding a link between heart disabilities and the symptoms of PTSD. The expert noted that there were known risk factors for the Veteran’s heart disability of atherosclerosis, including genetics, diet, and lifestyle; mental health disabilities, to include PTSD, is not an established risk factor for developing or worsening of cardiovascular disease. What is not clear from the opinion, and the basis of the request for an addendum opinion was which risk factors, if any, were shown in the Veteran’s medical records. This is the question to be answered on remand.   Entitlement to TDIU. The Veteran is shown to be unemployed at present, to include as due to his service-connected PTSD. As a result, the question of entitlement to TDIU is considered an inherent part of any claim for increased rating under Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), and the Board will consider it on this basis. In addition to the PTSD discussed above, the Veteran is also service-connected for degenerative joint disease in both hands and in the cervical spine, as well as hearing loss. However, the record before the Board does not contain a discussion of the Veteran’s education and employment history, which are important in determining his ability to perform other work despite his service-connected disabilities. This information should be obtained on remand. The matter is REMANDED for the following actions: 1. Obtain from the Veteran information regarding his education and employment history, to include information on his job duties and dates of employment. Request that the Veteran complete and return a VA Form 21-8940. The Veteran should also be informed that he can submit information, including medical opinions, regarding his ability to obtain and maintain substantially gainful employment, to include the functional impact/limitation from his service-connected disabilities. 2. Obtain an expert medical opinion with respect to the Veteran’s heart disability. Specifically, the opinion should address whether the Veteran has any risk factors with respect to the manifested heart disability. If none, explain why. If so, please list the risk factors and explain the impact, if any, of each one. Then, expert should also address whether it is at least as likely as not (probability 50 percent or greater) that the Veteran’s service-connected PTSD and/or chronic pain (bilateral hands, cervical spine) caused or aggravated (permanently worsen) the Veteran’s diagnosed heart disability, to include as a result of additional stress. In doing so, please note the article submitted by the Veteran’s representative. See Appellate Brief, received 01/30/2017, pp. 2, 4-17. Provide a comprehensive rationale to any opinion provided. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel