Citation Nr: 19100079 Decision Date: 01/02/19 Archive Date: 01/02/19 DOCKET NO. 17-11 262 DATE: January 2, 2019 ORDER Service connection for a heart disability is denied. Entitlement to an initial rating of 70 percent, but no more for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, effective September 28, 2015, is granted. Entitlement to an earlier effective date for a total disability rating based on individual unemployability (TDIU) is granted, effective September 28, 2015. Entitlement to an earlier effective date for eligibility to dependents' educational assistance (DEA) is granted, effective September 28, 2015. Service connection for an alcohol abuse disability is dismissed as moot. FINDINGS OF FACT 1. The Veteran’s heart disability is not related to service. 2. Throughout the appeal period, the Veteran had PTSD and major depressive disorder that is related to service. 3. The Veteran’s acquired psychiatric disorder symptoms resulted in occupational and social impairment with deficiencies in most areas throughout the appeal period. 4. As a result of his acquired psychiatric disorder, the Veteran was unable to obtain and maintain employment throughout the appeal period. 5. The Veteran was totally disabled and eligible for DEA benefits as of September 28, 2015. 6. The Veteran’s acquired psychiatric disorder to include PTSD and major depressive disorder encompasses all of his psychiatric symptoms. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Throughout the appeal period, the criteria for a rating of 70 percent, but no more for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for an earlier effective date for an award of TDIU have been met. 38 U.S.C. §§ 155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 4. The criteria for an earlier effective date for the award of DEA benefits have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.807(a), 21.3020, 21.3021. 5. The issue of entitlement to service connection for an alcohol use disability is moot. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1979 to August 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2016, October 2016, and February 2017 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Heart disability The Veteran asserts that his heart disability is related to service or his service connected disability. See August 2017 Form 9. Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. §1110; 38 U.S.C. §3.303. To establish service connection for the claimed disorder, the following criteria must be met: (1): medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Secondary service connection exists where there is: (1): a current disability that is not already service connected and (2) evidence that a non-service connected disability is either proximately due to or the result of or aggravated by a service connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Here, the Board finds service connection is not warranted because the Veteran’s heart disability is not related to service or caused or aggravated by his service connected acquired psychiatric disorder. The Veteran has a diagnosis of congestive heart failure, ventricular arrhythmia, cardiomyopathy and has an implanted cardiac pacemaker and automatic cardioverter defibrillator. See May 2016 VA examination. The Board notes the Veteran’s contention that his heart disability is related to service. However, the Veteran has not alleged the occurrence of any in-service event or incident. Service treatment records do not show complaints or treatment for a heart disability. As the May 2016 VA examiner concluded that the Veteran’s heart disability is the result of his hypertensive and restrictive cardiomyopathy, morbid obesity, and pulmonary hypertension the etiology of the Veteran’s heart disability cannot be related back to service. The Board notes the Veteran’s contention that his heart disability is related to service. However, because this issue is medically complex, requiring diagnostic testing, medical knowledge and expertise, the Veteran is unable to provide the medical nexus opinion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, although the Veteran asserts that his heart disability is related his service-connected acquired psychiatric disorder, the May 2016 VA examiner concluded that it is less likely than not that the Veteran’s heart disability is due to his service-connected acquired psychiatric disorder. This examiner reasoned that the Veteran’s extensive cardiology evaluations conducted by VA and private physicians conclude that the Veteran’s heart disability has known etiology related to cardiomyopathy, morbid obesity, and pulmonary hypertension. He further reasoned that the Veteran’s acquired psychiatric disorder is separate and distinct from and did not cause or aggravate his heart disability. The Board notes the Veteran’s submission of a medical treatise “The Weight of Traumatic Stress: A Prospective Study of Posttraumatic Stress Disorder Symptoms and Weight Status in Women.” However, the Board finds the May 2016 VA examination and its opinion more probative because it is based on the specific factual scenario in this case and the examiner’s opinion is well reasoned, based on the Veteran’s medical history and associated testing and results. As such, service connection is not warranted. Increased Rating Acquired psychiatric disorder The Veteran asserts that he is entitled to a higher initial rating for his service-connected acquired psychiatric disorder because his PTSD, major depressive disorder, and any related psychiatric symptoms are due to service. The Board notes the Veteran’s contention that he seeks an earlier effective date for his PTSD. Based on the Veteran’s April 2017 notice of disagreement (NOD) and February 2017 correspondence, the Board recharacterizes this claim as an assertion to a staged rating. See February 2017 correspondence and April 2017 NOD. The appeal period before the Board begins, September 28, 2015, the effective date of service connection for acquired psychiatric disorder because the Veteran appealed the initial rating assigned. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's acquired psychiatric disorder, to include PTSD and major depressive disorder, is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of symptoms and the extent to which they cause occupational and social impairment. See Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). The rating criteria includes a non-exhaustive list of symptoms, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Bankhead, 29 Vet. App. at 18 (quoting Vazquez-Claudio, 713 F.3d at 116-17) (quotations omitted). Thus, a veteran may qualify for a given disability rating by demonstrating that he or she suffers from the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms caused the level of occupational and social impairment associated with a particular disability evaluation. Bankhead, 29 Vet. App. at 18; Vazquez-Claudio, 713 F.3d at 116-17 (quotations omitted). In sum, “VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.” Bankhead, 29 Vet. App. at 22 (internal citations omitted). The Board finds that the Veteran had an acquired psychiatric disorder, to include PTSD and major depressive disorder that was related to service since his initial evaluation. At the initial PTSD examination in April 2016, the VA examiner concluded that the Veteran had a diagnosis of PTSD and major depressive disorder. The Board notes that the Veteran’s acquired psychiatric disorder, to include PTSD and major depressive disorder, encompasses all related psychiatric symptoms to include alcohol dependence symptoms. The April 2016 VA examiner concluded that the PTSD and major depressive disorder symptoms were separate and that only the PTSD was related to service. The February 2017 VA examiner concluded that because PTSD and depression are often co-morbid with overlapping symptoms, and in the Veteran’s case, his untreated PTSD resulted in his major depressive disorder. Based on the February 2017 VA examination, the RO staged the rating and determined that a 70 percent rating was warranted as of February 7, 2017. However, because the February 2017 VA examiner concluded that the Veteran’s PTSD led to his major depressive disorder and the record shows the Veteran was diagnosed with major depressive disorder when he first filed his claim, a 70 percent rating is warranted throughout the appeal period. See Mittleider v. West, 11 Vet. App. 181 (1998); Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board further finds a 70 percent rating is warranted throughout the appeal period. A 70 percent rating will be assigned for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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. At the April 2016 VA examination, the Veteran displayed suicidal ideation, disturbance in mood and motivation, difficulty establishing and maintaining effective work and social relationship, difficulty adapting to stressful circumstances, anxiety, and chronic sleep impairment. In February 2017, the Veteran also endorsed feelings of chronic sadness, neglect of personal hygiene, irritability, and unprovoked anger. See February 2017 statement. The VA examiner concluded that the Veteran’s symptoms resulted in occupational and social impairment with deficiencies in most areas. As such, a 70 percent rating is warranted. The Veteran has made clear that he is seeking an initial rating of 70 percent for his service-connected psychiatric disorder and a TDIU due to his psychiatric disorder throughout the appeal period. See February 2017 and April 2017 Correspondence. As the Board is granting a TDIU throughout the entire appeal period, the Board need not address whether a rating in excess of 70 percent is warranted. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Effective Date TDIU and eligibility to dependents’ educational assistance The Veteran asserts that he is entitled to an earlier effective date for TDIU and DEA benefits because he has been unable to work since September 1, 2015. See VA 21-8940 form. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more. 38 C.F.R. § 4.16 (a). Pursuant to this decision, the Veteran receives a 70 percent rating for his acquired psychiatric disorder. As such, he meets schedular requirements. The Veteran has bachelor’s degree in advertising, marketing, and English. Over the years he worked in various positions in finance and customer service. See April 2016 VA examination; VA 21-492 form. The Veteran’s acquired psychiatric symptoms have been stable throughout the appeal period. He has extreme difficulty establishing work relationships, which would prevent him from obtaining a job and working in a customer service oriented position. The Veteran reports being irritable and having unprovoked anger. See February 2017 statement. Additionally, his disturbances in mood and motivation limit his ability to regularly perform daily living activities, related to personal hygiene, that are necessary to successfully maintain employment. See February 2017 statement ; February 2017 VA examination. Thus, the evidence of record shows that the Veteran's acquired psychiatric disorder resulted in his inability to secure or maintain employment since service connection was established effective September 28, 2015. DEA benefits under the provisions of 38 U.S.C. Chapter 35 are available, in certain circumstances, when a Veteran has a total disability, permanent in nature, resulting from a service-connected disability. 38 C.F.R. §§ 3.807 (a), 21.3020, 21.3021. As discussed above, the Board finds that the award of a TDIU is warranted effective September 28, 2015. The effective date for the award of eligibility for DEA benefits is directly related to a finding that the Veteran was totally disabled based on individual unemployability due to a service-connected disability. Based on the foregoing, an effective date of September 28, 2015 is warranted for eligibility for DEA benefits. Alcohol use disability (Continued on the next page)   As set forth above, the Board finds that the Veteran’s service-connected acquired psychiatric disorder encompasses all of his psychiatric symptoms as part and parcel of his PTSD and major depressive disorder. To the extent, the Veteran experiences symptoms related to an alcohol use disability, they are contemplated by his acquired psychiatric disorder. Consequently, the Veteran's appeal seeking service connection for this disability is moot as the benefit sought is already in effect. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Ijitimehin, Associate Counsel