Citation Nr: 18124992 Decision Date: 08/09/18 Archive Date: 08/08/18 DOCKET NO. 14-41 123 DATE: August 9, 2018 ORDER 1. New and material evidence having been received, the claim of service connection for hypertension is reopened. 2. An initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with depressive disorder is granted, subject to the laws and regulations governing the payment of monetary awards. REMANDED 1. Service connection for hypertension, to include as secondary to PTSD with depressive disorder, is remanded. 2. Service connection for a respiratory disorder, as secondary to PTSD with depressive disorder, is remanded. 3. Service connection for a heart disorder, to include as secondary to PTSD with depressive disorder, is remanded. 4. Service connection for a gastrointestinal condition, to include as secondary to PTSD with depressive disorder, is remanded. 5. Service connection for residuals of a head injury is remanded. 6. Service connection for a chin scar is remanded. 7. Service connection for a disorder characterized by dizziness, to include as secondary to hearing loss or residuals of a head injury, is remanded. 8. An initial rating in excess of 10 percent for tinea versicolor is remanded. FINDINGS OF FACT 1. An October 2008 rating decision denied service connection for hypertension and the Veteran did not appeal the decision. 2. Evidence received since an October 2008 rating decision is neither cumulative nor redundant of evidence of record at the time of the prior denial, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. Since September 9, 2011, the Veteran’s PTSD with depressive disorder has manifested by occupational and social impairment with deficiencies in most areas, such as with work, school, family relations, judgment, thinking, or mood, but without total occupational and social impairment. CONCLUSIONS OF LAW 1. The October 2008 rating decision that denied service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Because evidence received since a final rating decision in October 2008 is new and material, the claim of service connection for hypertension is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Since September 9, 2011, the criteria for a 70 percent rating for PTSD with depressive disorder, but no higher, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1964 to March 1969. The case is on appeal from December 2012, August 2013, and June 2014 rating decisions. Additional evidence was received subsequent to the supplemental statement of the case issued in May 2015. As the evidence is not pertinent to the claim decided herein, a remand for agency of original jurisdiction (AOJ) consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, and to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. New and Material Evidence Claim 1. Whether new and material evidence has been received to reopen a claim of service connection for hypertension. By an October 2008 rating decision, a claim of service connection for hypertension was denied. The Veteran was notified of the decision by a letter later that month which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim of service connection for hypertension in September 2011. No new evidence or notice of disagreement was received by VA within one year of the issuance of the October 2008 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also January 2013 Internet Article Submission. II. Initial Rating Claim 2. Entitlement to an initial rating in excess of 30 percent for PTSD with depressive disorder. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Under 38 C.F.R. § 4.130, most service-connected mental health disabilities are rated pursuant to the General Rating Formula for Mental Disorders. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Under 38 C.F.R. § 4.130, a 30 percent rating is assigned when there is 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; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is 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 assigned when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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; having 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 evaluation is assigned 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 ability 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, own occupation, or own name. Facts and Analysis The Veteran contends that his service connected PTSD with depressive disorder should be rated higher than 30 percent. In this regard, he submitted a form in June 2015 attributing symptoms of anger, anxiety, sleep impairment, depression, alcohol use, memory loss, and panic attacks to his service connected psychiatric disorders. The Veteran was first afforded an examination in regard to his psychiatric disabilities in September 2012. The examiner reported that the Veteran experiences impaired concentration and attention, depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired judgment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting, due to PTSD and depressive disorder. The examiner also reported that the Veteran does not pose any danger to himself or others. The examiner found that the Veteran’s PTSD to be mild and his depressive disorder to be moderately severe. The examiner concluded that the Veteran’s psychiatric disabilities result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran’s VA treatment records contain mental health notes from 2013 and 2014. These notes reflect that, during treatment in July 2013, August 2013, October 2013, April 2014, and September 2014, the Veteran was found to be oriented to person, place, and time and his insight and judgment was found to be fair or good. Thereafter, the Veteran was afforded another psychiatric examination on October 23, 2014. The Veteran reported that he works, but that he uses his own choice of crews to avoid possible conflicts. He also reported that he works hard to conceal his various psychiatric symptoms from his co-workers. The examiner reported that the Veteran experiences psychiatric symptoms including depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, an inability to establish and maintain effective relationships, impaired impulse control, and intermittent inability to perform activities of daily living. The examiner concluded that these symptoms result in social and occupational impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. After engaging in a holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran’s PTSD with depressive disorder, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds that an initial rating of 70 percent is warranted. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013); Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Mauerhan v. Principi, 16 Vet. App. 436 442 (2002). In this regard, the September 2012 examiner reported that the Veteran experiences moderately severe impairment due to depressive disorder and difficulty in adapting to stressful circumstances. In addition, the November 2014 examiner found that the Veteran experiences difficulty adapting to stressful circumstances, an inability to establish and maintain effective relationships, and impaired impulse control. These symptoms are indicative of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, and, thus, a 70 percent disability rating. This level of impairment is shown since the award of service connection. Therefore, the Board concludes that an initial 70 percent rating is warranted. However, the Board does not find that a rating in excess of 70 percent is warranted as total occupational and social impairment has not been shown. Specifically, the Veteran has not exhibited 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, disorientation to time or place, or memory loss for names of his close relatives, his own occupation, or his own name. While the November 2014 examiner found that the Veteran showed intermittent inability to perform activities of daily living, he was not found to exhibit this symptom during the earlier examination of record or during VA treatment. The Board does not find that this one instance of this one symptom shows an approximation of the next rating impairment level. See Bankhead, 20 Vet. App. at 22 (the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level). In sum, an increased initial rating to 70 percent is warranted. However, as the preponderance of the evidence is against higher ratings, the benefit-of-the-doubt doctrine is not further applicable, and higher initial ratings are not warranted. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to PTSD with depressive disorder. 2. Entitlement to service connection for a respiratory disorder, as secondary to PTSD with depressive disorder. 3. Entitlement to service connection for a heart disorder, to include as secondary to PTSD with depressive disorder. 4. Entitlement to service connection for a gastrointestinal condition, to include as secondary to PTSD with depressive disorder. The Veteran is seeking service connection for hypertension, a respiratory disorder, a heart disorder, and a gastrointestinal condition. He contends that all of these conditions may be secondary to his service connected psychiatric disabilities. In addition, he contends that his hypertension may be due to his verified in-service exposure to herbicide and a gastrointestinal condition may be directly related to service. On remand, new examinations and opinions should be obtained in regard to these claims. In addition, he claims that he was treated for a heart attack at a Washington, DC VA facility in 1974 or 1975. On remand, AOJ should attempt to locate such records. 5. Entitlement to service connection for residuals of a head injury. 6. Entitlement to service connection for a chin scar. 7. Entitlement to service connection for a disorder characterized by dizziness, to include as secondary to hearing loss or residuals of a head injury. The Veteran contends that he fell from a bunk during service in July or August 1964 and hit his chin. He also contends that he has a residual injury from this fall, a chin scar, and regularly experiences dizziness due to this fall. The Veteran further contends that his dizziness may be related to his service-connected hearing loss. While the Veteran’s service treatment records (STRs) do not contain treatment for such an injury, it is unclear if all of his STRs have been associated with the file. On remand, the AOJ should attempt to locate any outstanding STRs and associate them with the record. Thereafter, the Veteran should be afforded an examination and opinion in regard to these claims. 8. Entitlement to an initial rating in excess of 10 percent for tinea versicolor. The Veteran is seeking a higher initial rating for his service-connected tinea versicolor. He was afforded a VA examination in regard to this claim in July 2013. However, the examiner did not address the severity of this condition during flare-ups, which the Veteran has indicated occur during the summer months. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (outlining VA examiners’ obligation to elicit information regarding any flare-ups of a disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups). Therefore, he should be afforded an additional examination to evaluate this claim on remand. The matters are REMANDED for the following action: 1. Contact the appropriate service department and/or records custodian(s), to include the National Personnel Records Center, with a request for copies of the Veteran’s complete STRs and SPRs. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain all of the Veteran’s outstanding VA treatment records, to include from Washington, DC VA medical facilities in 1974 and 1975 and updated VA treatment records since March 2016. 3. After completing the records development indicated above, schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension and all current heart disorders. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. (a.) The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is either caused or aggravated by his PTSD with depressive disorder. (b.) The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is related to his presumed herbicide exposure. (c.) Identify all of the Veteran’s heart disorders present during the period on appeal (since September 2011). For each identified disorder, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is either caused or aggravated by his PTSD with depressive disorder. The term “aggravation” means an increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. A complete rationale should be provided for any opinions reached. 4. After completing the records development indicated above, schedule the Veteran for a VA examination to determine the nature and etiology of all of the Veteran’s respiratory disorders. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Identify all of the Veteran’s respiratory disorders present during the period on appeal (since September 2011). For each identified disorder, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is either caused or aggravated by his PTSD with depressive disorder. The term “aggravation” means an increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. A complete rationale should be provided for any opinions reached. 5. After completing the records development indicated above, schedule the Veteran for a VA examination to determine the nature and etiology of his current gastrointestinal disorders. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Identify all of the Veteran’s gastrointestinal disorders present during the period on appeal (since September 2011). For each identified disorder the examiner should state: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder had its onset during service or is otherwise related to service. (b.) Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is either caused by or aggravated by his PTSD with depressive disorder. The term “aggravation” means an increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. A complete rationale should be provided for any opinions reached. 6. After completing the records development indicated above, schedule the Veteran for a VA examination to determine the nature and etiology of any current residuals of a head injury or disorder characterized by dizziness. Any and all studies, tests, and evaluations deemed necessary by the examiner should also be performed. (a.) The examiner should state whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran has residual disability from a head injury during service (since September 2011), to include from a fall from a bunk. (b.) The examiner should identify all disorders characterized by dizziness present during the period on appeal (since September 2011). For each identified disorder the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is either caused or aggravated by residual disability from his service-connected bilateral hearing loss or residual disability from a head injury. The term “aggravation” means an increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. A complete rationale should be provided for any opinions reached. 7. After completing the records development indicated above, schedule the Veteran for a VA examination to determine the nature, etiology, and severity of his skin disorders. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. (a.) The examiner should identify all facial scars present and state whether it is at least as likely as not (probability of 50 percent or greater) each scar had its onset during service or is otherwise related to service, to include as due to an in-service fall from a bunk. (b.) The examiner should determine the severity of the Veteran’s service-connected tinea versicolor. The examiner should also inquire about the nature and frequency of any flare-ups of this disability. If the current examination is not conducted during a flare-up, the functional impact of flare-ups should be estimated based on the Veteran’s reports. If this cannot be done, the examiner should explain why. A complete rationale should be provided for any opinions reached. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel