Citation Nr: 18125999 Decision Date: 08/14/18 Archive Date: 08/13/18 DOCKET NO. 13-08 743A DATE: August 14, 2018 ORDER The assignment of an initial 70 percent rating, but no higher for posttraumatic stress disorder (PTSD) is granted, subject to the law and regulations governing payment of monetary benefits. A total disability rating based on individual unemployability (TDIU) is granted, effective October 7, 2008, subject to the law and regulations governing payment of monetary benefits. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for liver cancer is remanded. Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities is remanded. Entitlement to service connection for a skin disability is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) of another person or at the housebound rate is remanded. Entitlement to service connection for the cause of the Veteran’s death for burial purposes is remanded. FINDINGS OF FACT 1. For the entirety of the period under review, the Veteran’s PTSD was manifested by symptomatology more nearly approximating occupational and social impairment with deficiencies in most areas; total occupational and social impairment was not present. 2. The Veteran’s PTSD rendered him unable to secure or follow gainful employment for the entirety of the period under review. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 70 percent initial rating, but no higher, for PTSD, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for the award of a TDIU, effective October 7, 2008, are met. 38 U.S.C §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(a), 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1970 to March 1972. In February 2016, the United States Court of Appeals for Veterans Claims (Court) granted the Veteran’s and the Secretary’s joint motion for remand (JMR) and vacated and remanded that portion of the Board’s July 2015 decision, which denied the Veteran entitlement to service connection for hepatitis C and liver cancer. The JMR did not disturb that portion of the July 2015 decision in which the Board denied service connection for a lumbar spine disability, a cervical spine disability, a bladder disability, and bilateral hearing loss. The Veteran died in May 2016. Subsequently, the appellant filed a claim based on his status as the Veteran’s surviving brother requesting to continue the Veteran’s claims. Upon the death of a claimant, a person who would be eligible to receive accrued benefits due to the claimant may be substituted as the claimant for the purposes of processing the claims to completion. See 38 U.S.C. § 5121A. In this case, the appellant’s request for substitution was granted in a February 2017 letter, and noted in a February 28, 2017 Memorandum (indicating that the appellant “can be recognized as the substitute claimant of the deceased Veteran based on reimbursement”). Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Historically, service connection for PTSD was established in October 2009, at which time the RO assigned an initial 30 percent disability rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, effective October 7, 2008. In a February 2013 rating decision, the RO increased the rating for PTSD to 50 percent, effective October 7, 2008. A May 2014 rating decision increased the Veteran’s rating to 70 percent, effective May 10, 2013. Despite the grants of higher ratings, the Veteran has not been awarded the highest possible rating, and the claim remains in appellate status. A.B. v. Brown, 6 Vet. App. 35 (1993) (in a claim for an increased rating, the Veteran is presumed to be seeking the maximum benefit allowable). PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 rating is warranted 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 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 the inability to establish and maintain effective relationships. A 100 percent rating is warranted where 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 or place; memory loss for names of close relatives, own occupation, or own name. Evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir.2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating;” and the Board would not need to find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). Entitlement to a rating in excess of 50 percent prior to May 10, 2013 for PTSD, to include entitlement to a TDIU, and entitlement to a rating greater than 70 percent from May 10, 2013. For the period under review from October 2008 to May 2013, the Veteran’s PTSD symptoms appeared to wax and wane in severity, at times manifesting in symptoms that would warrant a 70 percent rating under the General Rating Formula outlined above. Resolving all doubt in the Veteran’s favor, the Board finds that for this period, the Veteran’s symptoms were of such severity that they caused occupational and social impairment more closely approximating the level contemplated by a 70 percent rating. The Board will also award a TDIU during that time period. In connection with his initial claim for service connection for PTSD, the Veteran underwent a VA examination in October 2009. The examiner diagnosed PTSD. As to his social and occupational functioning, the Veteran reported marital discord and financial stress. He said he had two friends and two brothers with whom he spoke. He gardened as a hobby. The examiner noted a history of violence that could be provoked by others, and a previous history of alcohol dependence and abuse. On physical examination, the Veteran was lethargic, with monotone, spontaneous speech, a cooperative attitude; constricted, blunted affect; anxious mood; and intact attention. There was no evidence of delusions, panic attacks, suicidal or homicidal ideation, or obsessive or ritualistic behavior, and the examiner noted that the Veteran understood the outcome of his behavior. The Veteran claimed to have night terrors though he could not recall any nightmares. He said he had difficulty falling and staying asleep. He could maintain minimal personal hygiene and did not struggle with activities of daily living. The Veteran noted that he was not employed at the time of the examination but did not contend that his unemployment was due to his mental disorder. At a November 13, 2008 VA psychiatric assessment, the Veteran denied suicidal ideation but described a prior suicide attempt in May 2007 where he was in a coma for a week. The VA physician indicated that the Veteran had “chronic dysthymia, anergy, alternating with episodes of explosive rage, associated with frustration about physical problems, as well as other triggers.” He was noted to verbally abusive to his wife, but both he and his wife denied physical abuse. A November 2009 VA treatment note showed that the Veteran struggled with irritability and poor interpersonal function and that he tended to isolate due to poor tolerance to people. He endorsed nightmares and flashbacks of Vietnam. There was no evidence of suicidal or homicidal ideation or of mania or psychosis. The Veteran did not appear to be in distress, he was cooperative, his affect was congruent and appropriate, and his thought process was linear, logical, and goal-directed. The VA clinician noted that his PTSD was perpetuated by episodes of depression, and that the Veteran suffered from poor coping tools and chronic stressors. The clinician said his prognosis was poor and he was totally and permanently incapacitated to function occupationally and interpersonally. In the Veteran’s November 2009 Notice of Disagreement, he expressed that he suffered from panic attacks and had obsessive behavior such as not sitting with his back to a window or door and never leaving his doors unlocked. He also said that his short and long-term memory was impaired to the point that his wife put notes all over the house as reminders. He said he was estranged from most of his family and that the only reason his fourth marriage worked was because they participated in PTSD therapy sessions together every month. He also said that he had attempted suicide in 2007. The Veteran endorsed suicidal ideation in a June 2010 statement and said that he has serious anger issues, three failed marriages, and poor memory. He underwent another VA examination in February 2013. The examiner noted the symptoms of nightmares, hypervigilance, and exaggerated startled response to be associated with service-connected PTSD. He described the Veteran’s level of impairment as that of 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 medication. The Veteran described his marriage as “good,” said that he had four close friends, and said that he had good relationships with his two children when he saw them. He said he had most recently worked in 2000 or 2001. Symptoms associated with PTSD included depressed mood; anxiety; chronic sleep impairment; anhedonia; poor energy; poor appetite; poor concentration; and irritability. The examiner said the Veteran was able to manage his financial affairs. The Veteran denied current suicidal or homicidal ideation but reported his previous history of suicidal attempts. There were no signs of symptoms of mania or hypomania, nor evidence of psychosis. The Veteran endorsed panic attacks, but when asked to elaborate, was unable to describe them. He was alert and fully oriented, and there was no evidence of remote memory impairment. Based on that examination, the RO increased the Veteran’s rating for PTSD to 50 percent. In a February 2013 statement, the Veteran expressed specific disagreement with much of the content of the February 2013 VA examination report. He noted that the examiner did not address the November 2009 VA treatment note which indicated that the Veteran had total occupational and social impairment. Moreover, the Veteran expressed that though his marriage was better than his earlier marriages, that he had marital problems and that they lived an isolated life. He said he rarely spoke to his children and only saw the four friends mentioned in the VA examination report every so often. He also noted that the examiner should have noted symptoms including: suspiciousness, near-continuous panic or depression affecting the ability to function, mild memory loss, impairment of short and long-term memory, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The Veteran underwent a VA psychiatric evaluation in March 2013. He reported trouble with anger, a depressed mood, insomnia, nightmares, and periods of anxiety. He denied behavioral problems, but said that he felt depressed most of the time. He said he had social withdrawal and was most comfortable at his home in a rural area. He noted anhedonia. In a Disability Benefits Questionnaire submitted on May 10, 2013—the report upon which the agency of original jurisdiction (AOJ) based an increased rating to 70 percent—the examiner described symptoms similar to those the Veteran had been noting for years prior, to include rarely leaving home, suspiciousness, panic attacks, sleep impairment, memory loss, and difficulty in adapting to stressful circumstances. The examiner noted that the Veteran sat against a secure backdrop in rooms so he can survey his surroundings. He had on a number of occasions risen from bed and later been found in the woods. The examiner indicated that the Veteran had an “extensive history of symptoms with life-disabling consequences,” and indicated that the Veteran had the PTSD caused total occupational and social impairment. The Veteran is competent to report his feelings and describe certain symptoms regarding his PTSD. Taking into consideration the Veteran’s own descriptions of his symptoms, as well as the medical evidence of record, the Board resolves all doubt in the favor of the appellant and finds that the Veteran’s service-connected psychiatric disability manifested in symptoms most closely approximating those contemplated by a 70 percent rating, causing occupational and social impairment in most areas, such as work, family relations, judgment, thinking and mood. However, for the entire period under review, from 2008 to the time of his death in 2016, the preponderance of the evidence is against a finding that the Veteran’s PTSD manifested in total occupational and social impairment so as to warrant a 100 percent schedular rating. Although on two occasions, in November 2009 and May 2013, physicians indicated that the Veteran’s PTSD manifested in total occupational and social impairment, the most probative evidence of record indicates that the Veteran had the ability to maintain a relationship with his wife and brothers and limited friends during the period under review, weighing against a finding that total social impairment existed. In addition, the Veteran did not exhibit symptoms like or similar to those generally associated with those suffering from total occupational and social impairment. He consistently denied experiencing hallucinations or delusions, and did not exhibit gross impairment in thought processes or communication. While the Veteran had periods of suicidal ideation, he was not deemed a persistent danger to himself or others. He was never deemed unable to perform activities of daily living, nor was his orientation or memory loss described as so severe as to have no concept of time or place, or inability to remember his name or the names of others. That stated, the Board does find that in light of the fact that the Veteran’s PTSD inhibited his ability to work for the time period from the date of his claim in October 2008 to May 2013, and he now meets the schedular criteria for the award under the provisions of 38 C.F.R. § 4.16(a) for that entire time period, a TDIU award is warranted from October 7, 2008. A TDIU based on the Veteran’s PTSD has already been in effect from May 10, 2013 to the time of the Veteran’s death. In sum, a 70 percent rating, but no higher, is warranted for the Veteran’s PTSD from October 7, 2008. Although a 100 percent schedular rating is denied, a TDIU based on PTSD is awarded, also effective October 7, 2008. REASONS FOR REMAND 1. Entitlement to service connection for hepatitis C is remanded. 2. Entitlement to service connection for liver cancer is remanded. In an April 2015 decision, the Board denied the Veteran’s service-connection claims for hepatitis C and liver cancer. In pertinent part, the Board found that the Veteran’s report of in-service intravenous (IV) drug use amounted to willful misconduct, and therefore, by regulation, could not be the basis upon which a service-connection claim for hepatitis C could be granted. The Veteran appealed to the Court of Appeals for Veterans Claims (the Court), and the parties agreed in a Joint Motion for Partial Remand that the Board did not support its findings with an adequate statement of reasons and bases, citing the fact that the Veteran had alleged that his in-service drug use was a means of self-medication for his service-connected psychiatric disability. The parties to the Joint Motion cited to Allen v. Principi, 237 F. 3d 1368 (2001), for the proposition that service connection may be allowed where an alcohol-or-drug-abuse-related disability is secondary to or caused by a primary service-connected disorder. In light of the parties’ stipulations in the Joint Motion, and the fact that there are no medical opinions of record addressing whether the Veteran’s used drugs in service to self-medicate, the Board will remand the hepatitis C claim for further evidentiary development. The Board notes that the Veteran had diagnoses of hepatitis C and liver cancer, and there is probative medical evidence in the file indicating that the Veteran’s hepatitis C caused the ultimately fatal liver cancer. As the outcome of the claim for liver cancer is inextricably intertwined with the outcome of the claim for service connection for hepatitis C, the Board will defer consideration of that issue. 3. Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities is remanded. In its April 2015 and July 2015 decisions, the Board remanded the claim for service connection for bilateral peripheral neuropathy of the lower extremities so the RO could readjudicate the issue under VA’s revised presumption concerning disabilities associated with exposure to certain herbicide agents. The RO did not readjudicate the issue; accordingly, remand is warranted. 4. Entitlement to service connection for a skin disability is remanded. The Veteran contended that he had a skin disability due to exposure to herbicides in service. Specifically, he reported that he developed blisters on his ankles in service and that those blisters continued to recur and spread after service. The Board remanded the Veteran’s claim for service connection for a skin disability in April and July 2015 decisions to obtain a supplemental medical opinion. The Veteran died before an opinion was provided. Accordingly, on remand, the RO should obtain a medical opinion that considers the Veteran’s lay statements as well as the private June 2011 opinion. 5. Entitlement to SMC based on the need for regular A&A of another person or at the housebound rate is remanded. As a decision on the claims discussed above could affect the outcome of the Veteran’s SMC claim, the claims are inextricably intertwined, and remand is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). 6. Entitlement to service connection for the cause of the Veteran’s death for burial purposes. The appellant’s claim for burial benefits is inextricably intertwined with the claims of entitlement to service connection for liver cancer and hepatitis C. As such, the issue of entitlement to service connection for the cause of the Veteran’s death for burial purposes is deferred pending adjudicating of the appellant’s claims for service connection. The matters are REMANDED for the following action: 1. Obtain a medical opinion regarding the Veteran’s claims for service connection for hepatitis C and liver cancer. The examiner is specifically requested to review all pertinent records associated with the claims folder, specifically pertaining to the Veteran’s documented substance abuse, including heroin with possible injection use. Following such review, the examiner is asked to address the following: (a) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s heroin use in service was caused or aggravated by the Veteran’s now service-connected PTSD. (Note: the Veteran indicated on multiple occasions that he used heroin to curb his psychiatric symptoms in service, or self-medicate, and has stated that he attended an amnesty drug treatment program in Vietnam). (b) If so, is it at least as likely as not (50 percent or greater probability) that the Veteran’s hepatitis C is causally related to the substance abuse found to be secondary to the service-connected psychiatric disability? (c) If the Veteran’s in-service heroin use is not determined to be at least as likely caused or aggravated by the Veteran’s PTSD, is it at least as likely as not that the Veteran’s hepatitis C was due to other claimed in-service risk factors, to include an in-service tattoo and/or in-service sexual activity. The examiner should note that the Veteran was treated for syphilis during service. (d) In providing responses to the above questions, the examiner is asked to offer a full discussion of all possible modes of transmission from such substance abuse. The examiner is also asked to address the significance, if any, of the following evidence: i. The August 1998 letter from Dr. K. stating that the Veteran had hepatitis for “quite some time,” and that hepatitis C was most often transmitted by blood products of needles. ii. The Veteran’s contentions in February 2000 and February 2002 that he had hepatitis C in the 1970s in service. iii. The June 2011 letter from Dr. J.S. stating that the Veteran’s medical problems, to include hepatitis C, are a direct result of service in Vietnam. iv. The Veteran’s February 2012 testimony that he self-medicated with marijuana and heroin in service to deal with the “horrors” of what he witnessed in Vietnam and that he was diagnosed with hepatitis C in service. 2. Obtain a supplemental medical opinion which addresses whether there is a nexus between the Veteran’s skin disability(ies) and his exposure to herbicides in service. Based on a complete review of the record, the opinion provider should respond to the following: (a) Identify all skin disabilities diagnosed during the pendency of the appeal. (b) Address whether it is at least as likely as not (50 percent or greater probability) that any skin disability diagnosed during the appeal period was related to the Veteran’s service, to include as due to exposure to herbicides therein [the provider is instructed that the Veteran is presumed to have been exposed to herbicides in service.] (c) The examiner should provide a complete rationale for any opinion offered, which considers the Veteran’s lay statements alleging continuity of symptomatology. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal, to include entitlement to service connection for liver cancer, bilateral peripheral neuropathy, entitlement to service connection for the cause of the Veteran’s death for burial purposes, and entitlement to SMC benefits. If the benefit sought on appeal remains denied, the appellant and his attorney should be provided with a Supplemental Statement of the Case and be afforded a reasonable period of time within which to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel