Citation Nr: 19193102 Decision Date: 12/11/19 Archive Date: 12/11/19 DOCKET NO. 10-16 905 DATE: December 11, 2019 ORDER Entitlement to a rating of 70 percent for posttraumatic stress disorder (PTSD), but no higher, from September 1, 2016 to January 24, 2017, is granted. REMANDED Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents and as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for a liver condition, including liver cancer and a liver transplant, and including as secondary to hepatitis C, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU). FINDINGS OF FACT 1. From September 1, 2016 to January 24, 2017, the functional impairment resulting from the Veteran’s service-connected PTSD has more nearly approximated the 70 percent rating criteria under the General Rating Formula for Mental Disorders. 2. From September 1, 2016 to January 24, 2017, the functional impairment resulting from the Veteran’s service-connected PTSD has not caused total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) from September 1, 2016 to January 24, 2017 have been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1963 to March 1965. These matters are before the Board of Veterans’ Appeals on appeal from May 2009 (TDIU), September 2009 (hepatitis C and hypertension), April 2017 (PTSD), and October 2017 (liver transplant) rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The issues were previously addressed in Board decisions of April 2015 (hepatitis C, hypertension and TDIU), July 2017, (hepatitis C, hypertension, and TDIU), and July 2019 (PTSD, liver transplant, and TDIU). A hearing was held before the undersigned in June 2019. Entitlement to a rating 70 percent for posttraumatic stress disorder (PTSD) from September 1, 2016 to January 24, 2017 In March 2016, the Veteran filed a claim seeking a total disability rating for PTSD during a period of inpatient treatment. An April 2017 rating decision assigned a temporary total disability rating from June 29, 2016 to August 31, 2016 and a rating of 50 percent from September 1, 2016. The Veteran file a November 2017 notice of disagreement (NOD) expressly disagreeing to the assignment of a disability rating less than 70 percent. His representative asserted during the June 2017 hearing that a 70 percent rating for PTSD was warranted after the Veteran’s discharge from inpatient treatment. Subsequently, a September 2019 rating decision allowed a total disability rating for PTSD from January 25, 2017. This represents a full grant of the benefits sought under this appeal from January 25, 2017. Thus, issue before the Board is limited to whether a rating of 70 percent is warranted from September 1, 2016 to January 24, 2017. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9410, according to the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 50 percent rating is assigned when there is reduced reliability and productivity in occupational and social situations due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotypical speech; panic attacks that occur more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is justified when there is 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 inability to establish and maintain effective relationship. Id. A 100 percent disability rating is reserved for 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; and memory loss for names of close relatives, own occupation, or own name. Id. Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or “staged,” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. At 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118; Mauerhan, 16 Vet. App. at 442. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. In August 2016, the Veteran was discharged from an inpatient PTSD treatment program. At that time, the Veteran reported PTSD symptoms of sadness, strong anger (wanting to fight at times), disturbed sleep, nightmares, hypervigilance, being easily triggered, and avoidance of triggers. Subsequent VA mental health consult notes from September 2016, October 2016, November 2016, and December 2016 are of record and reveal the Veteran discussed his irritability and angry feelings with his VA therapist. Following his inpatient treatment, the Veteran also resumed counseling with C. W. at the Lakewood Vet Center. In a March 2017 letter C. W. reported that the Veteran, on his return to counseling, began to feel depressed and was “backsliding.” C. W. noted the Veteran engaged in a verbal altercation with a car salesperson. He described this a “typical” behavior for the Veteran, who was “easily irritated, and eruptive when angry.” Mental health evaluations of January 2017, associated with a review of the Veteran’s suitability to have a liver transplant, are also of record. In these evaluations, a social worker reported the Veteran’s mood was “pretty good,” his affect was appropriate, and his memory intact. A psychology intern, who interviewed the Veteran and his daughter for 15 minutes, noted the Veteran had past problems with irritability but was now usually able to contain his anger. The intern reported that the Veteran was living with his daughter and her family. Other family members were also available to support him during a transplant procedure and recovery. The intern described the Veteran as close to his children and highly motivated to receive a liver transplant because he wanted to be around for his family. The Board finds, that after his release from inpatient PTSD treatment, the Veteran continued to have symptoms of PTSD including, sadness, sleep disturbances, nightmares, and hypervigilance. In particular, he continued to be irritable and angry. His temper was, at times, explosive. These symptoms were reported during the regular course of treatment for PTSD to mental health professionals who treated the Veteran for extended periods of time. These records are extremely probative of the severity of the Veteran’s PTSD symptomatology over the time period at issue. The January 2017 mental health evaluations related to approval for a liver transplant reflect less severe symptoms. However, these evaluations were obtained with the goal of gaining approval for a liver transplant and were conducted by mental health professionals who were not involved in the long-term treatment of the Veteran. They are less probative of the severity of the Veteran’s PTSD over the time period in question. Resolving reasonable doubt in favor of the Veteran, from September 1, 2016 to January 24, 2017, his PTSD symptoms, particularly his irritability and explosive temper, caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations. Over this period, the Veteran regularly and actively participated in supportive PTSD counseling. He maintained and valued family relationship. His PTSD symptoms did not cause total occupational and social impairment. A 70 percent rating, but no higher is indicated. See 38 C.F.R. § 4.130, Diagnostic Code 9410. REASONS FOR REMAND The duty to assist requires VA to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with military service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 1. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents and as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. A July 2017 Board decision remanded the Veteran’s claim of entitlement to service connection for hypertension. The Board noted an August 2016 VA hypertension etiology opinion had not addressed information submitted by the Veteran in association with a March 2015 informal hearing presentation. This information included references to the VA’s PTSD website and medical literature which indicated a link between PTSD and hypertension. The Board remanded the claim for an additional medical opinion which included a review and discussion of the information indicating a causal link between PTSD and hypertension which was submitted with and identified in the informal hearing presentation. A new VA hypertension examination was provided in August 2019. The examiner stated that literature did not support a causal connection between PTSD and hypertension. However, he did not address any information submitted with the March 2015 informal hearing presentation. The examiner’s opinion does not comply with the prior remand and a new medical opinion must be obtained. See Stegall, supra. As discussed at the June 2019 hearing, the Veteran military service included duty in Vietnam. His exposure to herbicide agents is conceded. Although hypertension is not listed as a disease associated with herbicide exposure under section 3.309(e) of the regulations, the National Academy of Sciences Institute of Medicine (NAS) has concluded that there is “limited or suggestive evidence of an association” between herbicide exposure and hypertension. See 77 Fed. Reg. 47924, 47926-927 (Aug. 10, 2012). Recently, in Veterans and Agent Orange: Update 11 (2018), the NAS found sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. Specifically, hypertension was upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to the NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. The August 2016 and August 2019 VA examiners did not address the results of this study. An additional VA medical opinion is required. See McLendon, supra. 2. Entitlement to service connection for hepatitis C is remanded. An August 2016 VA examination evaluated the etiology of the Veteran’s hepatitis C. In July 2017, the Board found the examiner failed to consider all of the Veteran’s reported risk factors for contracting this virus. The Board listed risk factors of sharing razors and toothbrushes, tattoos, inoculations with air guns, multiple sexual partners, and exposure to contaminated blood or fluids. A new medical opinion, addressing these risk factors, was required. In August 2019 a new VA hepatitis examination was provided. The examiner opined it was less likely than not that the Veteran was initially infected with hepatitis C during his military service. However, the examiner stated, “even if Hepatitis C could be documented to have occurred in service it is not possible to identify if the cause of an infection is related directly to service duties (exposure to blood and bodily fluids) or social-behavioral factors (such as sexual partners, tattooing, or IV drug use).” The examiner’s distinction between risk factors which were related to service duties and social-behavioral factors is irrelevant. He failed to fully consider all risk factors present during the Veteran’s active service and his opinion is inadequate. See Stelf, supra. 3. Entitlement to service connection for a liver condition, including liver cancer and a liver transplant, including as secondary to hepatitis C is remanded. In September 2017, the Veteran filed a claim seeking service connection for a liver condition, including liver cancer and a liver transplant. His claim asserted his condition was related to service at Camp Lejeune. In October 2017 he filed a statement amending the claim. The statement clarified that the Veteran had never served at Camp Lejeune and his claim for service connection for liver cancer was not based on such service. He further explained that his military duties including handling casualties and, in performing this duty, he was exposed to human bodily fluids. In July 2017, medical records from the VCU medical center report the Veteran underwent a liver transplant in June 2017 due to end-stage liver disease secondary to hepatitis C cirrhosis with hepatocellular carcinoma. Accordingly, his claim for service connection for liver disease and a liver transplant is inextricably intertwined with his claim of entitlement to service connection for hepatitis C. See Harris, supra. 4. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. The Board’s April 2015 decision noted TDIU was raised by the record and associated with a claim for an increased rating for PTSD pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran subsequently submitted a TDIU claim form in January 2017. April 2014, July 2017, and July 2019 Board decisions remanded the issue of TDIU because it was intertwined with other remanded issues. A September 2019 rating decision allowed a total disability rating for the Veteran’s PTSD and determined this rendered the issue of TDIU moot. However, a grant of 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his other service-connected disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008) (VA must consider SMC for a TDIU claim despite 100 percent disability rating if VA finds a separate disability supports a TDIU). Here, the medical evidence of record shows the Veteran had serious medical conditions over the appeal period including hepatitis C, liver cancer, and a liver transplant. The Veteran’s claims of entitlement to service connection for these conditions remain under review. If service connection is allowed for these conditions, it is possible the Veteran could qualify for a TDIU based on disabilities other than PTSD. Therefore, the issue of TDIU is not moot. However, it is inextricably intertwined with the remanded issues herein. See Harris, supra. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not related to his military service including his exposure to herbicide agents The examiner should also opine whether it is at least as likely as not that hypertension is proximately due to his service-connected PTSD or aggravated beyond its natural progression by his service-connected PTSD. If the clinician determines an additional in-person examination is necessary, schedule and examination. The examiner must discuss the materials submitted and referenced in the March 2015 informal hearing presentation addressing a relationship between PTSD and hypertension. The examiner must also discuss the NAS study noted in the body of this decision. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation by establishing the baseline level of severity of the hypertension prior to aggravation by PTSD. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hepatitis C is at least as likely as not related to his military service including his reports of sharing razors and toothbrushes, tattoos, inoculations with air guns, multiple sexual partners, and exposure to contaminated blood or fluids. The examiner is advised that the Veteran is competent to report his activities which pose a risk of hepatitis C infection. The examiner may not dismiss any reports of these activities without providing a reason for dismissing them. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s liver conditions, including liver cancer and a liver transplant are at least as likely as not proximately due to his hepatitis C or aggravated beyond their natural progression by hepatitis C. (Continued on the next page)   The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation by establishing the baseline level of severity of the liver condition (including liver cancer and a liver transplant) prior to aggravation by hepatitis C. 4. Develop and adjudicate the issue of entitlement to TDIU. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.