Citation Nr: 19114775
Decision Date: 02/28/19	Archive Date: 02/28/19

DOCKET NO. 16-56 942
DATE:	February 28, 2019

ORDER

New and material evidence not having been received, the claim of entitlement to service connection for Barrett’s esophagus with hiatal hernia is not reopened.

New and material evidence not having been received, the claim of entitlement to service connection for respiratory disability, to include restricted lung capacity and chronic bronchitis, is not reopened.

Entitlement to service connection for sleep apnea is denied.

Entitlement to a rating in excess of 10 percent for bilateral tinnitus is denied.

Entitlement to a rating in excess of 20 percent for bilateral hearing loss is denied.

Entitlement to a rating in excess of 10 percent for hypertension is denied.

Entitlement to a rating in excess of 10 percent for right nephrolithiasis is denied.

Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted.

From April 9, 2012, entitlement to a total disability rating due to individual unemployability (TDIU) is granted.  

REMANDED

Entitlement to a rating in excess of 30 percent for diastolic dysfunction is remanded.

Entitlement to a TDIU for the period prior to April 9, 2012, is remanded.

FINDINGS OF FACT

1. A March 2008 Board decision denied the Veteran’s claim of entitlement to service connection for Barrett’s esophagus with hiatal hernia.  The Veteran did not timely appeal the decision.    

2. The evidence received since the March 2008 Board decision is either cumulative or redundant of evidence previously submitted in support of the Veteran’s claim of service connection for Barrett’s esophagus with hiatal hernia, and does not relate to an unestablished fact necessary to substantiate the claim.

3. A January 2012 rating decision denied the Veteran’s claim of entitlement to service connection for a respiratory disability.  The Veteran did not timely appeal the decision and new and material evidence was not received within one year of issuance. 

4. The evidence received since the January 2012 rating decision is either cumulative or redundant of evidence previously submitted in support of the Veteran’s claim of service connection for respiratory disability, to include restricted lung capacity and chronic bronchitis, and does not relate to an unestablished fact necessary to substantiate the claim.

5. The Veteran’s sleep apnea did not begin during and was not otherwise caused by his military service.

6. The Veteran is receiving the maximum schedular rating for bilateral tinnitus.

7. During the period on appeal, audiometric examinations correspond to no worse than level V hearing loss for the right ear and level V hearing loss for the left ear.

8. The Veteran’s hypertension has not been manifested by blood pressure readings with diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more.

9. The Veteran’s right nephrolithiasis does not result in hydronephrosis with frequent attacks of colic requiring catheter drainage.

10. Resolving reasonable doubt in the Veteran’s favor, his PTSD has been manifested, at worst, by symptoms productive of occupational and social impairment with deficiencies in most areas.

11. Resolving reasonable doubt in the Veteran’s favor, from April 9, 2012, entitlement to a TDIU is granted.

CONCLUSIONS OF LAW

1. The March 2008 Board decision, which denied the Veteran’s claim for service connection for Barrett’s esophagus with hiatal hernia, is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.204, 20.302, 20.1100, 20.1103 (2018).

2. Evidence received since the March 2008 Board decision in support of the claim of service connection for Barrett’s esophagus with hiatal hernia is not new and material; accordingly, this claim is not reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018).

3. The January 2012 rating decision, which denied reopening entitlement service connection for restrictive lung capacity (now recharacterized as respiratory disability, to include restricted lung capacity and chronic bronchitis), is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103.

4. Evidence received since the January 2012 rating decision, in support of the claim of service connection for restrictive lung capacity (now recharacterized as respiratory disability, to include restricted lung capacity and chronic bronchitis) is not new and material; accordingly, this claim is not reopened.  38 U.S.C. §§ 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 

5. The criteria for service connection for sleep apnea have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018).

6. The criteria for a disability rating in excess of 10 percent for service-connected bilateral tinnitus have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.87, Diagnostic Code 6260 (2018).

7. The criteria for a disability rating in excess of 20 percent for service-connected bilateral hearing loss have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.85 Diagnostic Code 6100 (2018)

8. The criteria for a disability rating in excess of 10 percent for service-connected hypertension have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2018).

9. The criteria for a rating in excess of 10 percent for right nephrolithiasis have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.115b, Diagnostic Code 7509 (2018).

10. Resolving reasonable doubt in the Veteran’s favor, the criteria for a rating of 70 percent, but no higher, for the entire period on appeal for PTSD have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411 (2018).

11. Resolving reasonable doubt in the Veteran’s favor, from April 9, 2012, the criteria for TDIU have been met.  38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 4.16(a) (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1974 to April 1979 and from October 1980 to October 1984. 

This matter comes before the Board of Veterans’ Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 

During the relevant period currently on appeal, in a February 2013 rating decision, the Veteran was granted an increased evaluation for diastolic dysfunction from 10 percent to 30 percent, effective March 12, 2012, as well as an increased evaluation for bilateral hearing loss from 10 percent to 20 percent, effective April 9, 2012.  However, as higher disability ratings are available for the diastolic dysfunction and bilateral hearing loss disabilities, the claims for higher disability ratings for these disabilities remain on appeal.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  

With respect to the claim of entitlement to service connection for sleep apnea, VA has not provided an examination.  However, VA is not required to provide an examination in every case.  Rather, VA must provide a medical examination when the record contains (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim.  See 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006). 

As discussed in more detail below, the Board has determined that the Veteran did not experience an in-service disease or injury that may be related to his current sleep apnea.  The criteria for obtaining a VA examination with respect to sleep apnea have not been met.  38 U.S.C. § 5103A(d)(2); McLendon, 20 Vet. App. at 85-86.

Moreover, the Veteran has asserted having restrictive lung capacity, dyspnea, and chronic bronchitis on account of his service.  As such, the Board recharacterized the claim to include any respiratory disorder pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (discussing this expanded-claim doctrine in a case involving a claim for mental impairment).

Claims to Reopen

To reopen a claim that has been denied by a final decision, the claimant must present new and material evidence with respect to the claim.  38 U.S.C. § 5108.  “New evidence” means existing evidence not previously submitted to the VA.  38 C.F.R. § 3.156(a).  “Material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and it must raise a reasonable possibility of substantiating the claim.  Id.  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). 

The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and it views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.”  See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010).  Evidence “raises a reasonable possibility of substantiating the claim” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim.  See id. at 120-23.





1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for Barrett’s esophagus with hiatal hernia.

Service connection for Barrett’s esophagus with hiatal hernia was initially denied in an April 2002 rating decision, on the basis that the evidence did not show the Veteran’s Barrett’s esophagus with hiatal hernia was related to military service.  After additional treatment records were submitted in support of the claim, an October 2003 rating decision confirmed the prior denial.  The Veteran was notified of the decision and of his appellate rights.  He timely appealed the decision in December 2003.  The Board remanded the matter in July 2006 for additional development.  Following completion of the requested development, the matter returned to the Board.  In a March 2008 Board decision, the Board found there was no competent medical evidence that established a nexus between the Veteran’s diagnosed Barrett’s esophagus with hiatal hernia, and active military service and denied the claim.  The Veteran did not appeal the Board’s decision.  Thus, the decision became final.  Pertinent evidence of record considered in March 2008 consisted of the following:

The Veteran’s statements asserting that his Barrett’s esophagus with hiatal hernia was incurred in service and that he had experienced gastrointestinal issues since separation from active service.  

Service medical records of January 1977 indicated the Veteran was in good health.  Service medical records from April 1981 to August 1984 indicated the Veteran had problems with indigestion, heartburn and gastroenteritis on three occasions, but there were otherwise no complaints, treatment or diagnoses of Barrett’s esophagus with hiatal hernia.  The Veteran’s August 1984 separation examination revealed frequent indigestion.

Barrett’s esophagus was diagnosed in September 2001 by a private physician.  This same physician submitted an October 2002 opinion statement in which he indicated it was “certainly possible” the Veteran’s Barrett’s esophagus began during active military service.  

A VA examination of September 2006, without the claims file, indicated an assessment of Barrett esophagus and hiatal hernia by history.  The examiner pointed out that significant gastrointestinal disease cannot be present in somebody that continues to gain weight as the Veteran.  The Veteran weighed 200 pounds in 1974, 280 pounds in 1984 and currently weighted over 350 pounds.  

Another VA examination, performed in February 2007, with review of the claims file, determined there were no objective findings of gastroesophageal reflux disease at the time.  The examiner reported a small hiatal hernia, and Barrett esophagus with its onset following military service.  The physician opined that the gastrointestinal pathology, including hiatal hernia and Barrett’s was virtually ubiquitous in the morbidly obese due to the intrabdominal pressure created by body habitus and movement.  The examiner stated that a thorough review of the service medical records and current medical records failed to uncover a compelling connection between the two.  The clinician opined there were not significant findings during military service to adequately support the diagnosis, and that current gastrointestinal conditions were less likely than not caused by or related to the subjective complaints during military service.

The Veteran filed the instant claim to reopen the issue of entitlement to service connection for Barrett’s esophagus with hiatal hernia in April 2012.  A February 2013 rating decision confirmed and continued the denial for entitlement to service connection for Barrett’s esophagus with hiatal hernia since the evidence of record did not show an event, disease, or injury in service.  The Veteran filed a timely notice of disagreement in March 2013 and subsequent to the October 2016 statement of the case, the Veteran timely appealed the matter currently before the Board.  

Pertinent evidence presented or associated with the Veteran’s claims file since the March 2008 Board decision includes statements from the Veteran in his May 2012 statement indicating his ongoing gastrointestinal issues since active service, VA treatment records noting the Veteran’s Barrett’s esophagus with hiatal hernia, to include biopsies in February 2010 and October 2015 that showed Barrett’s esophagus, and a November 2012 VA examination in which the VA examiner provided a negative etiological opinion.  

In a November 2012 VA examination, the examiner diagnosed Barrett’s esophagus, GERD, and small hiatal hernia.  See November 2012 VA examination.  The examiner opined that it was less likely as not incurred in or caused by reported event in service.  The examiner noted that STRs were silent for the condition and that the diagnosis was not established until 2001, years after service.  The examiner noted there were no significant findings during military service to adequately support the diagnosis of Barrett’s esophagus with hiatal hernia.  

The Board concludes that the additional evidence received since the March 2008 Board decision is not new and material because it does not relate to an unestablished fact necessary to substantiate the Veteran’s claim and does not raise a reasonable possibility of substantiating the Veteran’s claim when considered by itself or in conjunction with the evidence that was previously of record.

The Board finds that the Veteran’s statements in May 2012, the VA treatment records from 2008, and the November 2012 VA examiner’s negative opinion do not constitute new and material evidence.  The Veteran has previously contended that his current condition began during his period of active service.  Evidence previously was considered that noted the Veteran’s diagnosis of Barrett’s esophagus with hiatal hernia.  Moreover, the November 2012 VA examiner’s opinion, while new, was not material as it did not substantiate the claim.  Thus, the Board finds that the Veteran’s statement in May 2012, the VA treatment records from 2008, and the November 2012 VA examiner’s opinion as merely cumulative or redundant and do not raise a reasonable possibility of substantiating the Veteran’s claim. 

In summary, the evidence submitted since the March 2008 Board decision, when considered by itself or in conjunction with evidence that was previously of record, is not new and material.  Specifically, the additional evidence does not relate to an unestablished fact necessary to substantiate the Veteran’s claim, namely, evidence indicating a nexus between his Barrett’s esophagus with hiatal hernia and military service; nor does the evidence raise a reasonable possibility of substantiating his claim.  As new and material evidence has not been received, the claim for service connection for Barrett’s esophagus with hiatal hernia is not reopened.  See 38 C.F.R. § 3.156(a).

2. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a respiratory disability, to include restricted lung capacity and chronic bronchitis.

Here the Veteran initially submitted his claim for restricted lung capacity (dyspnea) in May 2011.  A January 2012 rating decision denied the claim finding that the medical evidence of record failed to show that this disability had been clinically diagnosed.  The January 2012 RO acknowledged the Veteran’s ongoing reports of respiratory disorder, to include chronic bronchitis, during active service and since then.  Pertinent evidence considered at the time of the January 2012 rating decision included STRs, outpatient medical evidence from the Biloxi VA Medical Center Healthcare System dated May 12, 2009 to October 20, 2011, statements from the Veteran and his wife that was received in February 2011, private medical records from Dr. David Campbell, Sacred Heart Crestview Medical, that was received on June 22, 2011, and a June 2011 VA examination.  

In the June 2011 VA examination, the examiner diagnosed acute bronchitis.  See June 2011 VA examination.  The examiner noted that the claims file was silent for diagnosis or treatment of chronic bronchitis.  The examiner noted that the Veteran’s bronchitis was treated with cough medicine and antibiotics.  The examiner indicated seasonal changes or that symptoms came on by itself three to four times a year.  The examiner noted the Veteran would take five to seven days of antibiotics and it would clear up.  The examiner noted the last diagnosis of bronchitis was in January or February 2011.  

The claim was denied in January 2012 because there was no evidence of a diagnosed disability that was etiologically related to the Veteran’s military service.  The Veteran did not submit a notice of disagreement to the January 2012 rating decision.  

The Board observes that although evidence was received within the one year period after the January 2012 rating decision, it was not new and material.  Pertinent evidence received since the January 2012 rating decision includes the Veteran’s submission of another claim for chronic bronchitis in April 2012, a May 2012 statement in which the Veteran reported that he has had bronchitis since his service dates in 1984 and that he still had bouts of severe episodes where he ended up in the VA ER.  

In November 2012, the Veteran was provided another VA examination.  See November 2012 VA examination.  During examination, the Veteran reported dyspnea, shortness of breath, and dry cough.  He stated sometimes his inhalers worked, and stated he had bronchitis a few times in service.  The November 2012 VA examiner opined that there was insufficient evidence to warrant or confirm a current diagnosis of a chronic pulmonary condition or its residuals.  The examiner noted the claimed condition had resolved without residuals and noted there was no functional limitation and that no medical opinion could be rendered as no condition is diagnosed.  

The Board concludes that the additional evidence received since the January 2012 rating decision is not new and material because it does not relate to an unestablished fact necessary to substantiate the Veteran’s claim and does not raise a reasonable possibility of substantiating the Veteran’s claim when considered by itself or in conjunction with the evidence that was previously of record.  

The Board finds that the Veteran’s statements in May 2012, the VA treatment records since 2012, and the November 2012 VA examiner’s negative opinion do not constitute new and material evidence.  The Veteran has previously contended that his current chronic respiratory condition began during his period of active service.  Evidence previously was considered that noted the Veteran’s acute diagnosis of respiratory disability.  Moreover, the November 2012 VA examiner’s opinion, while new, was not material as it did not substantiate the claim.  Thus, the Board finds that the Veteran’s statement in May 2012, the VA treatment records since 2012, and the November 2012 VA examiner’s opinion as merely cumulative or redundant and do not raise a reasonable possibility of substantiating the Veteran’s claim.  Thus, the January 2012 decision is final.  

In summary, the evidence submitted since the January 2012 decision, when considered by itself or in conjunction with evidence that was previously of record, is not new and material.  Specifically, the additional evidence does not relate to an unestablished fact necessary to substantiate the Veteran’s claim, namely, evidence indicating a nexus between his claimed respiratory disability and military service; nor does the evidence raise a reasonable possibility of substantiating his claim.  As new and material evidence has not been received, the claim for service connection for respiratory disability, to include restricted lung capacity and chronic bronchitis, is not reopened.  See 38 C.F.R. § 3.156(a).

Service Connection

Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

Entitlement to service connection may be established with evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the “nexus” requirement).).  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Entitlement to service connection for sleep apnea.

The Veteran claims entitlement to service connection for sleep apnea.

While the Veteran has a current disability consisting of sleep apnea, see March 2012 VA Sleep Study Report (diagnosing severe obstructive sleep apnea hypopnea syndrome), his claim is denied because of the lack of an in-service disease or injury.  See June 2012 Medical Treatment Record – Government Facility; see also Shedden, 381 F.3d at 1167.

The Veteran alleges that he had onset of symptoms of sleep apnea during his active service.  Specifically, in a May 2012 statement, the Veteran reported that he had been a loud snorer since the mid-1980s and was awakened by shipmates and told to quit snoring.  He indicated that he was never tested until recently and was diagnosed with sleep apnea.  See May 2012 Statement in Support of Claim.  

However, review of his service treatment records does not reveal complaints of trouble breathing at night, snoring, or complaints of an inability to sleep.  There is no contemporaneous evidence to support the Veteran’s allegations which were made in the context of a claim for benefits.  Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that in weighing credibility, VA may consider inconsistent statements and consistency with other evidence of record); Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (holding that the Board is not required to accept an appellant’s uncorroborated account of his active service experiences).  The Board recognizes that contemporaneous medical evidence documenting in-service symptoms is not always required to establish a claim, but the lack of contemporaneous complaints is pertinent evidence, particularly in evaluating the Veteran’s reliability as a historian.  See Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder); Caluza, 7 Vet. App. at 511.

Moreover, the Board notes July 2002 VA treatment record in which the Veteran reported that his sleep was satisfactory and although he snored occasionally, he did not have any respiratory difficulty during sleep and was not having any paroxysm.  

The first indication of sleep apnea was in an August 2005 VA treatment record in which the medical provider noted sleep apnea and recommended that a sleep apnea workup should be completed as an outpatient.  The Veteran claims that he was aware of sleep problems during his active service, but the medical record shows that in 2002, except for snoring occasionally, the Veteran denied any respiratory difficulty during sleep and that he had satisfactory sleep.  This discrepancy, particularly when viewed in the context of the entire record, reduces the credibility of the Veteran’s statement.  Caluza, 7 Vet. App. at 511.

The Veteran was first diagnosed with sleep apnea in 2005, two decades after leaving the service.  This delay in seeking treatment or reporting symptoms weighs against finding that the condition existed during service.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board is entitled to consider a delay in seeking treatment and reporting symptoms).  The greater weight of the evidence is against finding that the Veteran experienced an in-service disease or injury (such as symptoms of sleep apnea) that may be related to his current sleep apnea. 

Consequently, the evidence is not in equipoise, but the greater weight of the evidence is against finding that the Veteran had an in-service occurrence or aggravation of a disease or injury.  The benefit-of-the-doubt rule does not apply.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Entitlement to service connection for sleep apnea is denied.

Increased Ratings

A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule).  See generally 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can practicably be 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.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. § 4.27. 

VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).  The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings,” regardless of whether a case involves an initial rating.  E.g., Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 

When 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.  38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id. 

1. Entitlement to a rating in excess of 10 percent for bilateral tinnitus.

Service connection for tinnitus was granted in a May 2007 rating decision and 10 percent disability rating was assigned, effective May 3, 2004, the date of his initial claim for benefits was received.  The Veteran has since submitted the current claim for an increased rating in April 2012. 

The Veteran’s tinnitus is rated as 10 percent disabling under DC 6260.  Under that diagnostic code, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  The maximum schedular rating available for tinnitus is 10 percent.  38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006); VAOPGCPREC 2-2003.  As the maximum schedular rating under DC 6260 has been reached, a higher schedular rating is not available and his claim for a higher schedular rating must be denied.

2. Entitlement to a rating in excess of 20 percent for bilateral hearing loss.

Service connection for bilateral hearing loss was granted in a May 2007 rating decision and a 10 percent disability rating was assigned, effective May 3, 2004, the date of his initial claim for benefits was received.  The Veteran has since submitted the current claim for an increased rating in April 2012.  As noted above, during the pendency of the appeal, the bilateral hearing loss disability evaluation was increased from 10 percent to 20 percent, effective April 9, 2012.

Evaluations for defective hearing under Diagnostic Code 6100 are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII.  To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness.  Table VI is used to determine the Roman numeral designation, based on test results consisting of pure tone thresholds and Maryland CNC test speech discrimination scores. Id. Where hearing impairment is based only upon pure tone threshold average due to use of the speech discrimination test being inappropriate, Table VIa is used to determine the Roman numeral designation.  Id.  The Roman numeral designations are then applied to Table VII to determine the appropriate rating for hearing impairment.  Id. 

Ratings for hearing impairment under Diagnostic Code 6100 are derived by a mechanical application of the Rating Schedule to the Roman numeral designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

Factual Background and Legal Analysis

The Veteran contends that he is entitled to a rating in excess of 20 percent rating for his bilateral hearing loss disability. 

In a May 2012 statement in support of his claim, he reported that although he wore hearing aids, he found it harder and harder to make out sentences when people spoke to him and that he also had trouble understanding the television.  See May 2012 Statement in Support of Claim.

The Veteran was afforded a VA audio examination in May 2012.  See May 2012 VA Examination.  Audiometric testing was performed and the Veteran’s right ear pure tone thresholds, in decibels, were 50 at the 1000 Hertz frequency, 60 at the 2000 Hertz frequency, 70 at the 3000 Hertz frequency, and 75 at the 4000 Hertz frequency.  His left ear pure tone thresholds, in decibels, were 40 at the 1000 Hertz frequency, 55 at the 2000 and 3000 Hertz frequencies, and 65 at the 4000 Hertz frequency.  The average of pure tone threshold findings at the 1000, 2000, 3000, and 4000 Hertz frequencies was 63.75 decibels in the right ear and 53.75 decibels in the left ear.  The Veteran’s Maryland CNC speech recognition scores were 70 percent for the right ear and 72 percent for the left ear.  As for the functional impact of his bilateral hearing loss disability, the Veteran reported that his biggest problem was understanding words when someone was talking to him.  He reported that he usually had to read lips to understand what was being said and even then, he still missed things.

The results of the May 2012 audiometric testing resulted in a right ear Roman numeral designation of level V and a left ear Roman numeral designation of level V.  See 38 C.F.R. § 4.85, Table VI.  After applying these designations to Table VII, the result was a 20 percent rating for the Veteran’s bilateral hearing loss disability.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. 

A June 2014 VA treatment record noted the Veteran’s right ear hearing was within normal limits at 250 Hertz, with mild sensorineural hearing loss from 500 Hertz to 2000 Hertz, and severe to profound hearing loss from 6000 Hertz to 8000 Hertz.  See April 2016 CAPRI.  The reviewing VA audiologist also noted that the left ear showed mild sensorineural hearing loss from 250 Hertz to 1500 Hertz, moderate hearing loss from 2000 Hertz to 4000 Hertz, and moderately severe hearing loss from 6000 Hertz to 8000 Hertz.  The VA audiologist noted that speech discrimination was good bilaterally and noted the Veteran’s improved hearing from the May 2012 VA examination and improved discrimination bilaterally.  

The Veteran was provided another VA audio examination in July 2016.  See July 2016 C&P Exam.  Audiometric testing was performed and the Veteran’s right ear pure tone thresholds, in decibels, were 35 at the 1000 and 2000 Hertz frequencies, 55 at the 3000 Hertz frequency, and 65 at the 4000 Hertz frequency.  His left ear pure tone thresholds, in decibels, were 45 at the 1000 Hertz frequency, 55 at the 2000 Hertz frequency, 50 at the 3000 Hertz frequency, and 65 at the 4000 Hertz frequency.  The average of pure tone threshold findings at the 1000, 2000, 3000, and 4000 Hertz frequencies was 47.5 decibels in the right ear and 53.75 decibels in the left ear.  The Veteran’s Maryland CNC speech recognition scores were 94 percent for the right ear and 82 percent for the left ear. 

The results of the July 2016 audiometric testing resulted in a right ear Roman numeral designation of level I and a left ear Roman numeral designation of level IV.  See 38 C.F.R. § 4.85, Table VI.  After applying these designations to Table VII, the result was a 0 percent rating for the Veteran’s bilateral hearing loss disability.  See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.

Because none of the above-noted audiometric testing results show pure tone thresholds at each of the four specified frequencies of 55 decibels or more in either ear, or pure tone threshold of 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, an exceptional pattern of hearing impairment is not shown for either ear during the course of the appeal.  As such, the audiometric findings do not warrant consideration under 38 C.F.R. § 4.86. 

Given this evidence, the record does not support awarding a rating higher than 20 percent for the Veteran’s bilateral hearing loss disability at any time during the appeal period.  In addition, as noted above, a June 2014 VA treatment record noted the Veteran’s improved hearing when compared to the May 2012 VA examination, thus providing further evidence that, at worst, the Veteran’s hearing warrants a 20 percent evaluation, and no higher.  Although the Veteran has indicated that a rating in excess of 20 percent is warranted for his bilateral hearing loss disability, the rating criteria for hearing loss requires the mechanical application of rating criteria to objectively-obtained audiometric testing results.  See Lendenmann, 3 Vet. App. at 349-50.  As the preponderance of the evidence is against assigning a rating in excess of 20 percent for the Veteran’s bilateral hearing loss disability, this claim must be denied.

3. Entitlement to a rating in excess of 10 percent for hypertension.

Service connection was established for hypertension in a May 2007 rating decision.  An initial non-compensable rating was assigned under Diagnostic Code 7101, effective May 3, 2004.  A subsequent rating decision in August 2010 increased the evaluation to 10 percent, effective September 9, 2009.  The Veteran has since submitted the current claim for an increased rating for the service-connected hypertension in April 2012.   

Under Diagnostic Code 7101, hypertension warrants a 10 percent rating where diastolic pressure is predominately 100 or more; systolic pressure predominately 160 or more, or if there is a history of diastolic pressure predominately 100 or more and the individual requires continuous medication for control.  A 20 percent disability evaluation for hypertension requires diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.  38 C.F.R. § 4.104, Diagnostic Code 7101.  

The Board notes that the rating criteria for Diagnostic Codes 7101 are successive.  In other words, the evaluation for each higher disability rating includes the criteria of each lower disability rating.  Therefore, if any criterion is not met at a particular level, the Veteran can only be rated at the level that does not require the missing component.  See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (noting that the conjunctive “and” and “with” in a statutory provision means that all of the listed conditions must be met).

Having carefully considered all the evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for hypertension.

Factual Background and Legal Analysis

During the current period on appeal, the Veteran was initially provided a VA examination in May 2012.  See May 2012 VA Examination.  This VA examination does not contain evidence of predominant diastolic blood pressure of 110 or more or a predominant systolic blood pressure of 200 or more, to warrant the next higher rating under Diagnostic Code 7101.  The VA examiner noted the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more and noted Veteran’s blood pressure readings were 122/70 (April 11, 2012), 140/80 (April 16, 2012), and 133/81 (May 9, 2012).  The examiner noted that the Veteran was taking continuous medications for his hypertension (Losartan and Metoprolol Tartrate).  The examiner diagnosed hypertension.  The examiner found that the Veteran’s hypertension did not impact his ability to work.

VA treatment records do not contain evidence of predominant diastolic blood pressure of 110 or more or a predominant systolic blood pressure of 200 or more, to warrant the next higher rating under Diagnostic Code 7101.  There has only been one instance of a systolic blood pressure of 200 in November 2012 with a blood pressure reading of 200/90 and all other blood pressure readings have not shown diastolic blood pressure of 110 or more or systolic blood pressure of 200 or more.  See November 2012 CAPRI.  Specifically, the Veteran’s treatment records during the appeal period document blood pressure readings of 145/99 (May 2011); 124/70 and 134/71 (June 2011); 107/69 (July 2011); 113/72 (September 2011); 154/87 and 157/83 (November 2011); 144/80 (March 2012); 122/70, 138/55, and 140/80 (April 2012); 143/82 (October 2012); 138/84, 144/74, and 136/80 (April 2013); 129/67 (September 2013); 142/70 (April 2014); 134/75 (June 2014); 163/73 (August 2014); 157/86 and 175/95 (October 2014); 152/86 (January 2015); 160/92 (May 2015); 134/76 and 170/77 (July 2015); 156/78 (August 2015); 175/92 (September 2015); 131/63 (October 2015); 143/79 (December 2015); 130/65 (January 2016); 147/79 (February 2016); 147/87 (March 2016); and 159/94 and 161/72 (July 2016).  

The Veteran was provided another VA examination in July 2016.  This VA examination does not contain evidence of predominant diastolic blood pressure of 110 or more or a predominant systolic blood pressure of 200 or more, to warrant the next higher rating under Diagnostic Code 7101.  The VA examiner noted the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more and noted Veteran’s blood pressure readings were 146/88 (July 6, 2016), 162/89 (July 6, 2016), and 160/86 (July 6, 2016).  The examiner noted that the Veteran was taking continuous medications for his hypertension (Losartan and Metoprolol Tartrate).  The examiner diagnosed hypertension.  The examiner found that the Veteran’s hypertension did not impact his ability to work.

The Board acknowledges the Veteran’s reports of experiencing dizziness, chest pounding, and even blacking out due to intermittent spikes in his blood pressure.  See July 2013 Correspondence; see also March 2016 VA 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability.  Although the Veteran claims there are spikes in his blood pressure at home, there is still no indication that blood pressure readings at home would warrant a higher rating.  Instead, the Veteran reported that when he checked his blood pressure approximately two times a week at home, he had measurements of 140 to 150s systolic and 90s diastolic blood pressure readings.  Based on a review of the evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran’s hypertension disability is not warranted under Diagnostic Code 7101.  See 38 C.F.R. § 4.104.  Except for one instance of a systolic blood pressure reading of 200 in November 2012, there is no evidence of predominant diastolic blood pressure of 110 or more or a predominant systolic blood pressure of 200 or more.  A one-time reading is not sufficient to be considered as “predominant” blood pressure reading.  

As such, the criteria for an increased rating for hypertension have not been met or nearly approximated at any time during the appeal period.  38 C.F.R. § 4.104, Diagnostic Code 7101.  As the preponderance of the evidence is against a rating in excess of 10 percent for hypertension, the benefit-of-the-doubt doctrine does not apply.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

4. Entitlement to a rating in excess of 10 percent for right nephrolithiasis.

Service connection for right nephrolithiasis, or kidney stones, was granted in a January 1986 rating decision and a 0 percent disability rating was assigned, effective October 31, 1984.  An October 2001 rating decision increased the evaluation of right nephrolithiasis from 0 percent to 10 percent, effective June 27, 2000.  An October 2012 VCAA notification letter noted that the Veteran’s April 2012 claim was amended, in part, to include increased evaluation for right nephrolithiasis.  See October 2012 VCAA/DTA Letter.

The Veteran is currently assigned a 10 percent rating for hydronephrosis under 38 C.F.R. § 4.115b, Diagnostic Code 7509.  Hydronephrosis is rated as 10 percent disabling when there is only an occasional attack of colic, not infected and not requiring catheter drainage.  A 20 percent rating is warranted when there are frequent attacks of colic, requiring catheter drainage.  A maximum 30 percent evaluation is warranted when there are frequent attacks of colic with infection (pyonephrosis), with impaired kidney function.  If hydronephrosis is severe, it is rated as renal dysfunction.

“Hydronephrosis” is distention of the pelvis and calices of the kidney with urine due to obstruction of the ureter.  See Dorland’s Illustrated Medical Dictionary 892 (31st ed. 2007).  “Colic” is acute abdominal pain.  See Dorland’s at 389.

Factual Background and Legal Analysis 

A March 2012 VA treatment record noted the Veteran had mentioned a history of nocturnal urinary frequency.  See February 2013 CAPRI.

An October 2012 VA treatment record noted that the most recent attack of kidney stones was in about 2000.  See February 2013 CAPRI.

The Veteran was provided a VA examination in November 2012.  See November 2012 VA examination.  The Veteran reported that the last kidney stone he had was a few years ago.  He stated he got them one to two times a year and he passed them.  He denied surgery.  The examiner noted the Veteran’s treatment plan did not include taking continuous medication for the diagnosed condition.  The examiner noted the Veteran has had calculi in the ureter but that the Veteran has not had treatment for recurrent stone formation.  At the time of examination, the Veteran did not have any signs or symptoms due to urolithiasis.  The examiner noted the Veteran has not had a kidney transplant or removal.  The examiner noted the Veteran has not had a benign or malignant neoplasm or metastases related to his kidney disability.  The examiner noted that a urinalysis done on November 2, 2012 was negative and noted an impression of no renal calcification seen and no acute abdominal pathology.  The examiner diagnosed nephrolithiasis.  The examiner noted the Veteran’s kidney condition did not impact his ability to work.  

An August 2014 VA treatment record noted the Veteran complained of dysuria and low right back pain with onset of one week ago.  See April 2016 CAPRI.  The Veteran reported frequency of urination and odor of urine.  The record noted the Veteran’s history of diabetes mellitus and prior urinary tract infections (UTI’s).  The record noted a diagnosis of UTI.

A May 2015 VA treatment record noted the Veteran’s reports of pain in his right costovertebral angle (CVA) area for a week.  See April 2016 CAPRI.  The Veteran reported pain started on the left side two days ago, chills for two days, and nausea since the day before.  The Veteran denied dysuria, hematuria, or abdominal pain.  CT scans revealed the kidneys demonstrated no hydronephrosis and that no obstructing renal or ureteral calculi were identified.  A subsequent VA treatment record in May 2015 noted a diagnosis of UTI.  Id.

A July 2015 VA treatment record noted the Veteran complaints of right lower to mid back pain.  See April 2016 CAPRI.  The Veteran stated that he was on antibiotics (ATB) from the ER for UTI three weeks ago and stated that ever since, he has had back pain.  He denied any urinary symptoms besides right flank pain.  The record noted a diagnosis of back pain and he was given a GI cocktail.

A November 2015 VA treatment record noted the Veteran presented with 12 hours of left flank pain.  See April 2016 CAPRI.  The record noted he had a history of renal stones and that the Veteran stated this felt similar.  The record noted the Veteran was positive for dysuria and maybe some hematuria earlier that morning.  The record noted “possible renal stone vs. other.”  However, an addendum to this record on the same day noted that urine analysis and lab results were within normal limits and the CT renal scan was negative for stones, revealed normal contour of the kidneys, and that there was no hydronephrosis.  The reviewing provider indicated he thought the flank pain may represent a passed stone or the pain may be emanating from his back.  

A March 2016 VA treatment record noted the Veteran’s dysuria and subsequent CT renal scan revealed no renal or ureteral stones, no collecting system dilation, mild diffuse cortical thinning bilateral, and mild cortical lobulation of the left kidney unchanged since the previous examinations.  See April 2016 CAPRI.  The record noted an impression that no acute abnormality was identified and that no renal or ureteral stone and no evidence of obstruction was noted.  The record noted cholelithiasis, or gallbladder stones.  

A June 2016 VA treatment record noted the Veteran’s complaints of right sided pain.  The Veteran reported that blood work came back negative but that the pain was still there and seemed worse than before.  See June 2016 CAPRI.

The Veteran was provided another VA examination in July 2016.  See July 2016 C&P Exam.  During examination, the Veteran reported that he continued to have intermittent flank pain but usually passed the stone prior to radiological evaluation in the emergency room.  The examiner noted the most recent CT renal stone scan was on March 21, 2016 that was negative for nephrolithiasis.  The examiner noted the Veteran’s treatment plan did not include taking continuous medication for the Veteran’s diagnosed nephrolithiasis.  The examiner noted the Veteran did not have renal dysfunction but did note the Veteran’s calculi in the ureter and occasional attacks of colic.  However, the examiner noted the Veteran has not had treatment for recurrent stone formation.  The examiner noted the Veteran did not have a history of recurrent symptomatic urinary tract or kidney infections, had not had a kidney transplant or removal, and did not have a benign or malignant neoplasm or metastases related to the kidney disability.  The examiner noted that a diagnostic study performed on June 4, 2016 revealed normal results.  The examiner noted the Veteran’s kidney condition did not impact his ability to work.  

The Board finds that a rating higher than 10 percent is not warranted.  During the appeal period, the Veteran had intermittent episodes of abdominal pain as noted above.  However, there is no indication that they were associated with hydronephrosis.  Instead, VA treatment records in May 2015, November 2015, March 2016 specifically noted that no hydronephrosis and no obstructing renal or ureteral calculi were present.  VA examinations in November 2012 and July 2016 also found that no hydronephrosis was present, and that the Veteran had not had any catheter drainage and at most, occasional colic attacks.  

The Board acknowledges the Veteran’s reports of flank pain in August 2014, May 2015, July 2015, November 2015, and June 2016.  However, as noted above, several of these reports flank pain has been associated with gallbladder stones and back pain.  Even if these documented abdominal pains were attributable to hydronephrosis, none required any catheter drainage or were shown to be due to infection of the kidney.  Therefore, a rating higher than 10 percent is not warranted under Diagnostic Code 7509.

The Board notes that the Veteran was diagnosed with nephrolithiasis of the kidney.  Under Diagnostic Code 7508, nephrolithiasis is rated as hydronephrosis under Diagnostic Code 7509, except a veteran is entitled to a 30 percent rating under Diagnostic Code 7508 when there is recurrent stone formation requiring one or more of the following: (1) diet therapy, (2) drug therapy, or (3) invasive or noninvasive procedures more than two times per year.  The evidence has not indicated that recurrent stone formation requiring diet therapy, drug therapy, or invasive or non-invasive procedures more than two times per year has occurred.  Therefore, Diagnostic Code 7508 is not applicable.

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim for a rating higher than 10 percent, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b).

5. Entitlement to an initial rating in excess of 50 percent for PTSD.

PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411.  The rating criteria provide that a 50 percent evaluation is warranted 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; difficulty in establishing effective work and social relationships.  Id.

A 70 percent evaluation 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 worklike setting); inability to establish and maintain effective relationships.  Id.

A 100 percent evaluation is warranted 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; memory loss for names of close relatives, own occupation, or own name.  Id.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126.

The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Factual Background

Service connection was established for PTSD, also claimed as anxiety, depression, and mood swings, in a February 2013 rating decision.  An initial 50 percent rating was assigned under Diagnostic Code 9411, effective April 9, 2012.  

In a May 2012 statement, the Veteran stated that he still experienced nightmares on traumatic experiences he had from active service.  See May 2012 VA 21-4138 Statement in Support of Claim.  He reported that sometimes depression and mood swings would come over him and he would not want to leave his house.  He reported that when he went out, he would get scared when someone walked up close behind him.  

The Veteran was provided a VA examination in November 2012.  See November 2012 VA Examination.  During examination, the examiner diagnosed PTSD and noted the Veteran’s frustration that his brief two mental health contacts at VA had resulted in the doctors making light of his mental impairment and sending him away without any suggested followup.  The examiner noted the Veteran’s report of PTSD symptoms was compatible with his valid MMPI but indicated that other issues in addition to his PTSD may also impair his mood.  The Veteran complained of considerable medical issues and had been arrested in the past with reference to lude behavior including exposing himself.  The examiner noted the Veteran denied the charges of sexually inappropriate behavior.  The examiner noted the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation.  

At the November 2012 VA examination, the Veteran reported that he had been married to his wife for 23 years with no children.  The Veteran stated his marriage was very good and he had a few friends.  The examiner noted the Veteran was nice and polite during examination.  The examiner noted the Veteran had some college and last worked full-time in 2009 as a manager of a shoe store for eight years and that his physical problems qualified him for Social Security disability.  The Veteran claimed he experienced anxiety, depression, and anger problems with suicidal and homicidal ideas without intent.  

The November 2012 VA examiner noted the Veteran’s recurrent and distressing recollections of the in-service traumatic events, including images, thoughts, or perceptions, as well as recurrent distressing dreams of said events.  The examiner noted the Veteran’s markedly diminished interest or participation in significant activities, feeling of detachment or estrangement from others; and restricted range of affect.  The examiner noted the Veteran had difficulty falling or staying asleep and irritability or outbursts of anger.  The examiner noted the Veteran’s PTSD symptoms included depressed mood, anxiety, suspiciousness, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation.  The examiner noted the Veteran’s intelligence was within the superior range based on vocabulary SS 17 on the WAIS III.  The examiner noted his valid MMPI showed depression, schizophrenia, and PTSD PK between 85-95 T-scores.  The examiner indicated mild PTSD with mild social impairment.  

VA treatment records from 2014 to 2016 consistently noted the Veteran was alert and oriented to person, place, time, and situation during examinations, was cooperative and appropriate, and had no thoughts of killing self or harming others.  

In a July 2015 VA treatment record, the Veteran presented at a mental health assessment with depressive symptoms but he denied current suicidal ideation with plan and/or intent and indicated that he had no previous suicide attempts.  See April 2016 CAPRI.  The Veteran reported that his faith and family support seemed to be protective factors for him, along with his interest in fishing.  The reviewing provider noted the Veteran did not appear to be in immediate risk for suicide and determined that suicide prevention services did not seem necessary.  The Veteran reported a longstanding history of depression due to his declining health following a full life.  The provider noted the Veteran had difficulty accepting life changes with aging and health decline.  The Veteran indicated that he wanted to walk with his wife but had difficulty as he ambulated with rolling walker and had difficulty breathing.  The provider noted the Veteran was insightful regarding what aspects he was able to exert control on.  

During the July 2015 VA mental health assessment, the Veteran stated he had always coped well and the provider noted that they discussed his support system of personal friends, who were also veterans, that he found was helpful.  The Veteran reported that he talked to his uncle and his wife and he also discussed his appreciation for fishing and reflecting on the over 60 countries he had traveled to.  The provider noted the Veteran was engaged in lively story telling.  The provider noted that they discussed risk factors for suicide and that the Veteran agreed that life was less enjoyable at the time but stated his Christian faith was important to him.  The Veteran stated he “would never do that.”  The provider noted they discussed the Veteran’s marital relationship as another protective factor.  The provider noted they discussed coping which the Veteran stated he found in his personal support system and in doing the things he was still able to do.  The provider noted the Veteran was forward planning.  The Veteran declined referral to individual/group services for MHC.  The Veteran denied any current thoughts, plans, intentions on suicidal or homicidal ideations, and reported that all of his weapons were locked and unloaded.  He denied previous attempts of suicide and denied any history of developing a plan.  He identified his wife, uncle, and personal friends as sources of support.  

On mental status examination, the July 2015 VA medical provider noted the Veteran was morbidly obese, ambulated with a rolling walker, was groomed well, was cooperative and pleasant, and was oriented to time, person, and place.  The provider noted there was no memory impairment and that the Veteran was engaged in storytelling during evaluation.  The provider noted that regarding language and speech, it was excessive at times but no impediments were noted.  The provider noted the Veteran’s full affect and congruent mood, that there was no evidence of psychosis, hallucinations, delusions, and that the Veteran had good awareness, judgment, and insight.  The provider diagnosed depression.

In a March 2016 statement, the Veteran reported that he was constantly on edge and that he had to be aware of his situations at all times due to his paranoia and anxiety.  See March 2016 VA 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability.  He explained that when he was at a movie theatre, he had to sit in the very last row with his back against the wall and when in a restaurant, he had to sit with his back against the wall with a clear view of everyone around him.  He reported that he suffered from anxiety attacks a few times a week and that large crowds and loud noises triggered his anxiety.  He reported that when he went to the store, he preferred to go in the early morning when it was less busy and crowded to ease his anxiety.  He reported that he suffered from mood swings and depression because of his PTSD and that there were times he became so depressed that he wanted to isolate himself from everyone and not leave his house.  

He reported experiencing nightmares that included flashbacks and memories of his time in service as often as a few times a month.  He reported that these nightmares interrupted his sleep and as a result, he would feel very drowsy the next day.  He reported that sometimes during the middle of the night, he would get up and walk around the house to check windows and doors to make sure no one was outside or in his house.  He reported that he had gotten into the habit of double checking doors and windows to make sure they were locked every night.  The Veteran reported that when he was working as an assistant manager, he was responsible for helping customers and associates and that his PTSD kept him on edge all the time at work.  He reported that he was very anxious and nervous around groups of people, particularly larger crowds.  He indicated that when customers asked him for assistance, he would get anxious and respond with “weird” things due to the discomfort he felt.  He reported that he isolated himself from coworkers, especially those he did not know well.  He reported that he was only comfortable around people he was very familiar with.  

The Veteran was provided another VA examination in July 2016.  See July 2016 C&P Exam.  During examination, the examiner diagnosed PTSD and a new diagnosis of unspecified depressive disorder.  The examiner noted that the new diagnosis was to reflect the Veteran’s depressed mood in reaction to his chronic and acute physical health problems including heart, lung problems, diabetes, neuropathy, and arthritis.  The examiner noted the Veteran’s PTSD symptoms included depressed mood, anxiety, suspiciousness, and chronic sleep impairment.  The examiner noted the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation.  

At the July 2016 VA examination, the Veteran reported that he resided with his wife and two cats and described his family life as good.  He reported that his main social support was his wife and they like to fish and sometimes go to the movies.  The Veteran indicated that they liked to drive and watch television as well.  He stated he was happy with the amount of friendships in his life and had no impediments to that but he did not describe having friends.  The examiner noted this was a change since July 2015 in which the Veteran was seen for a mental health assessment.  The Veteran stated he attended church and was a member of American Legion but that he rarely went there.  The Veteran described his typical daily activities included getting up between 6am to 8am, getting dressed, eating breakfast, going to an appointment if he had one, going grocery shopping early in the morning or late at night to avoid large crowds, dinner in the evening, sometimes washing dishes, watching television, and going to bed sometime between 9pm and 10pm.  The examiner noted the Veteran had not worked since his last VA examination in 2012.  The examiner noted the Veteran did not receive any formal treatment for a mental disorder.  The examiner noted the Veteran’s irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance, exaggerated startle response, and sleep disturbance.  

The Veteran denied current suicidal or homicidal intent but admitted to having suicidal thoughts in July 2015 but had no active plan or intent at the time.  He reported always feeling anxious, even at home and described this as feeling nervous and always on edge all the time.  He reported experiencing nightmares, anxiety (including fears related to being attacked), watchfulness, avoidance of crowds, startling when someone he did not know touched him.  Regarding behavioral observations, the July 2016 VA examiner noted the Veteran had excellent hygiene and grooming, was cooperative, had appropriate behavior, had dysphoric mood, had mildly constricted affect but not flattened, had normal speech, had clear and focused thought process with normal thought content, had no perceptual disturbances, and was alert and oriented.  The examiner noted the Veteran had poor insight and was capable of managing his financial affairs.  

In an October 2016 vocational expert report, the vocational consultant, P.T., noted the Veteran was pleasant and cooperative during interview.   See November 2016 Medical Treatment Record – Non-Government Facility.  During the interview, the Veteran reported that he was married and resided with his wife and had no children.  The Veteran reported chronic sleep disturbances in which he awakened several nights per week due to nightmares.  The Veteran indicated that as a result of his PTSD and sleep disturbances, he had difficulty concentrating and focusing on tasks and events.  He provided examples of several events where he forgot to turn off stove burners and failed to stop at red lights.  The Veteran reported that his PTSD impacted his ability to appropriately interact with others and to establish relationships.  He indicated that he did not trust nor wanted to be around other people and that he became very guarded around people he did not know.  He stated he had no friends or associates and rarely left the house.  He explained that he attended church services when he was able.  He reported the only individuals he interacted with were his wife, niece, and pastor.  

The Veteran reported that he spent most of his day sitting and did not have any outside activities or interests.  P.T. also noted she spoke with the Veteran’s spouse, M.L.S., who indicated the Veteran tossed and turned at night and moaned and groaned in his sleep.  M.L.S. stated that she did not touch him to try to wake the Veteran and instead called his name.  M.L.S. explained that the Veteran had warned her when they first married that should he experience nightmares, she was to yell at him to wake up and not touch him as he was liable to strike her.  M.L.S. also reported that the Veteran compulsively checked the doors at night to be certain they were lock and that his behavior had been deteriorating over time.  M.L.S. explained that the Veteran becomes short-tempered with her and was exhibiting short-term memory problems which concerned her.  

Legal Analysis

For the entirety of the relevant period on appeal, many of the Veteran’s abilities and behaviors do not approximate particulars for a disability rating in excess of 50 percent.  For example, there was no indication that his orientation, alertness, speech, and linear thought process was abnormal nor was there indication of the lack of maintaining minimal personal appearance or hygiene.  This weighs against finding that the Veteran’s psychiatric symptoms result in deficiencies in most areas.  However, the Veteran’s complaints regarding his suicidal ideation, decreased concentration and memory, his chronic sleep impairment, his increased hypervigilance, unprovoked irritation and anger outburst, increased startle response, and his increased social avoidance supports entitlement to a 70 percent rating for PTSD.  Because a state of relative equipoise has been reached as to the issue of an increased rating for PTSD, the benefit of the doubt rule applies and a 70 percent rating is granted.  See Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993).

For the entirety of the appeal, the Veteran is not entitled to a disability rating in excess of 70 percent.  The medical and lay evidence does not indicate that the Veteran is a persistent harm to himself or others, that he experienced delusions or hallucinations, had grossly inappropriate behavior, or was disoriented to time or place.  The Board also notes the Veteran maintains relationships with his wife of over two decades, pastor, and some family members.  The Veteran’s ability to also maintain hobbies and other social activities in his retirement, to include fishing, attending church, and going to the movies weighs heavily against a 100 percent rating that is applicable only when there is total occupational and social impairment.  Considering the evidence clearly does not show the Veteran has total occupational and social impairment due to his PTSD, the Veteran’s PTSD does not warrant a higher rating of 100 percent.

6. Entitlement to a TDIU from April 9, 2012.

When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  The Veteran submitted a claim for a TDIU, received by the VA on March 8, 2012, and never withdrew the claim.  The Board finds this is consistent with the idea that TDIU is a component of the appeal for higher ratings.    

The record reflects that the Veteran has been unemployed since 2009.  The Veteran contends that he had difficulty maintaining a full-time job due to his service-connected disabilities.

TDIU is warranted when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment.

If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  

For the relevant period on appeal, the Veteran has been in receipt of a 70 percent rating for PTSD from April 9, 2012; a 10 percent rating to March 11, 2012, and a 30 percent rating from March 12, 2012 for diastolic dysfunction; a 10 percent rating to April 8, 2012, and a 20 percent rating from April 9, 2012 for bilateral hearing loss; a 10 percent rating for right nephrolithiasis; a 10 percent rating for tinnitus; and a 10 percent rating for hypertension.  The pertinent schedular criteria based on rating percentages have been met from April 9, 2012.  38 C.F.R. § 4.16(a).

A March 2009 SSA treatment record noted the Veteran’s work history included working as a route delivery driver from 1990 to 1997, an assistant manager at a retail shoe store from 1997 to 2000, a car salesman from 2000 to 2003, an assistant manager at a retail shoe store from 2003 to 2006, a manager at a retail electronics store from 2006 to 2007, and a key holder/manager at a retail shoe store from 2007 to 2009.  

In a May 2012 statement, the Veteran reported that although he wore hearing aids, he found it harder and harder to make out sentences when people spoke to him and that he also had trouble understanding the television.  See May 2012 Statement in Support of Claim.  He also reported that the ringing in his ears is louder.  The Veteran also reported that he continued to have nightmares related to his PTSD in-service traumatic experiences, he experienced depression and mood swings, did not want to leave his home, and when he did go out, he became scared when someone walked up closed behind him.  

During the May 2012 hearing loss and tinnitus VA examination, the Veteran reported that his biggest problem was understanding words when someone was talking to him.  He reported that he usually had to read lips to understand what was being said and even then, he still missed things.  The examiner found the Veteran’s hearing loss impacted the Veteran’s ordinary conditions of daily life, including his ability to work.  The examiner found the Veteran’s tinnitus did not impact the Veteran’s ordinary conditions of daily life, including his ability to work.

During a November 2012 general medical VA examination, the examiner noted the Veteran’s hypertension was controlled with medication management and had no functional limitation.  See November 2012 VA examination.  The examiner noted the Veteran’s diastolic dysfunction associated with hypertension also had no functional limitation.  The examiner noted that regarding the Veteran’s right nephrolithiasis, there were no active kidney stones at that time, and that there was no functional limitation as well.  The examiner found that the Veteran was capable of light to moderate duty employment, based on his service-connected conditions alone, if he so chooses.  

In a November 2012 PTSD VA examination, the examiner noted the Veteran’s PTSD symptoms included depressed mood, anxiety, suspiciousness, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation.  See November 2012 VA examination.  

In a July 2013 statement, the Veteran reported that he was unable to work anymore due to his service-connected medical conditions.  See July 2013 Correspondence.  He reported that his heart condition prevented him from partaking in any activity that caused over exertion, which resulted in shortness of breath and chest pains.  He reported that this was detrimental to his work performance and health because it sometimes caused dizziness and that he had fallen at times.  He reported that his blood pressure rose if he was in a stressful situation and that he experienced a pounding in his chest and sometimes dizziness.  He reported there had been an incident in which he blacked out at home from his blood pressure.  

Regarding his hearing loss, he indicated that even though he wore hearing aids, he still suffered from tinnitus which interfered with his ability to hear what people are saying clearly and that it was hard to comprehend what they said.  He stated that his tinnitus caused stress which kept him from concentrating fully on what he was doing or saying and that he would start to panic.  Regarding his PTSD, he stated that working and being in any stressful situations caused his heart to start pounding and racing which caused him to have shortness of breath and to get chest pains.  He said this sometimes resulted in confusion and that he would start to panic and feel a threatening sensation as if everyone was against him.  He indicated this interfered with him having a good relationship with others.  He stated he seemed to be jittery and that he could not concentrate fully anymore.  He stated that he had a lot of confusion and forgot simple things.  

In a March 2016 statement, the Veteran reported that when he was working as an assistant manager, he was responsible for helping customers and associates and that his PTSD kept him on edge all the time at work.  See March 2016 VA 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability.  He reported that he was very anxious and nervous around groups of people, particularly larger crowds.  He indicated that when customers asked him for assistance, he would get anxious and respond with “weird” things due to the discomfort he felt.  He reported that he isolated himself from coworkers, especially those he did not know well.  He reported that he was only comfortable around people he was very familiar with.  

In a July 2016 PTSD VA examination, the examiner noted the Veteran’s irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance, exaggerated startle response, and chronic sleep disturbance.  See July 2016 C&P Exam.  

In a July 2016 hearing loss and tinnitus VA examination, the examiner found the Veteran’s bilateral hearing loss and tinnitus did not impact the Veteran’s ordinary conditions of daily life, including his ability to work.  See July 2016 C&P Exam.

In a July 2016 heart conditions VA examination, the Veteran reported that he continued to have leg edema and dyspnea on exertion.  See July 2016 C&P Exam.  The examiner noted the Veteran’s heart condition impacted his ability to work, specifically that the Veteran was unable to walk a block due to shortness of breath.  

In a July 2016 hypertension VA examination, the examiner noted the Veteran’s hypertension did not impact his ability to work.  See July 2016 C&P Exam.

In a July 2016 kidney conditions VA examination, the Veteran reported intermittent flank pain and that he usually passed a kidney stone prior to radiological evaluation in the emergency room.  See July 2016 C&P Exam.  The examiner found the Veteran’s kidney condition did not impact his ability to work.  

The Veteran submitted a private opinion in November 2016 in support of his TDIU claim.  See November 2016 Medical Treatment Record – Non-Government Facility.  The opinion was conducted by P.T., a vocational specialist.  The provider noted a detailed review of the Veteran’s claims file, indicated a thorough interview of the Veteran, and provided an extensive explanation in support of her findings.  P.T. also provided her extensive credentials and educational background as a vocational expert.  The provider noted the Veteran had a GED and had two years of college.  She noted the Veteran’s non-service related work was significant for employment as a retail store manager, retail assistant store manager, route delivery driver, and automobile salesperson.  She noted that based on Social Security records and file documentation, the Veteran last worked in 2009.  She noted a review of the Veteran’s file showed that he had an extensive history of symptoms caused by his service-connected disability.  She found that based on the information provided in a review of the medical records, reports provided by the Veteran, a review of the information contained in the Dictionary of Occupational Titles and the various surveys conducted by Occupational Information Network, it is at least as likely as not that the Veteran is precluded from performing substantially gainful work as a result of his service-connected disabilities.  

The October 2016 vocational assessment provider noted that based on the Veteran’s service-connected disabilities, he is precluded from performing work at any level, including the sedentary level which is defined in the Dictionary of Occupational Titles as work that involves exerting force to ten pounds occasionally or negligible amount of force frequently to lift, carry, push, or pull.  The provider noted that although a sedentary job involved significant sitting, a certain amount of standing or walking is often necessary to carry out job duties.  The provider noted that jobs are sedentary if walking and standing are performed occasionally and all other sedentary criteria are met.  The provider noted the Veteran experienced shortness of breath and dizziness with minimal walking.  Therefore, the provider noted he would be unable to perform the physical demands of sedentary work.  

The provider further noted that the veteran did not possess sufficient skills that readily transfer to sedentary work based on his vocational history.  The provider noted the Veteran did not appear to possess sufficient computer skills necessary for work within the sedentary physical demand level.  The provider further noted that the Veteran’s PTSD resulted in difficulty concentrating and focusing on tasks, which would further preclude him from employment, as he would be unable to complete tasks in a timely and acceptable manner.  The provider found that based on the medical records, ongoing severity of symptoms, and the Veteran’s description of his symptoms, it is her opinion that it is at least as likely as not that the Veteran’s service-connected disabilities have rendered him unable to secure and follow substantially gainful occupation and that this unemployability dates back to at least 2009, when he last worked.    

Thus, given the negative VA examination reports, the Board notes that there are conflicting medical opinions of record.  The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  The credibility and weight to be attached to these opinions is within the province of the Board.  Id.  

In this case, the Board finds all the opinions probative.  The evidence is at least in relative equipoise with regard to whether the Veteran’s service-connected disabilities preclude substantially gainful employment.  The Board concludes that the Veteran’s service-connected disabilities prevent him from securing and following substantially gainful employment consistent with his education and occupational experience.  Entitlement to a TDIU from April 9, 2012, is, therefore, granted.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.16(a).

REASONS FOR REMAND

1. Entitlement to a rating in excess of 30 percent for diastolic dysfunction is remanded.

The Veteran’s diastolic dysfunction associated with hypertension is evaluated under Diagnostic Code 7007.  38 C.F.R. § 4.104.  

A review of the record shows that during the relevant period on appeal, the Veteran received a VA examination in November 2012 and July 2016.  In the November 2012 VA examination, the examiner noted on METs testing, METs score was estimated at 1 up to 3 with symptoms of dyspnea, fatigue, and dizziness.  See November 2012 VA examination.  In the July 2016 VA examination, the examiner noted on METs testing, METs score was estimated at more than 3 up to 5 with symptoms of dyspnea, fatigue, and dizziness.  See July 2016 C&P Exam.

However, in a September 2016 addendum VA opinion, the examiner was asked to review the records and discuss whether or not the current METs level was related to the service connected diastolic dysfunction and if the Veteran’s METs score was not solely due to cardiac function, to provide a revised METs score based solely on cardiac functioning.  See September 2016 C&P Exam.  If the revised METs could not be provided without resorting to mere speculation, the examiner was asked to indicate whether the Veteran’s LVEF testing rendered a more accurate finding regarding cardiovascular manifestations alone.  The September 2016 VA examiner did not indicate whether or not the current METs level from the July 2016 VA examination was related to the service-connected diastolic dysfunction, did not specify if the revised METs could not be provided without resorting to mere speculation, and only indicated the Veteran’s LVEF testing rendered a more accurate finding regarding cardiovascular manifestations alone.  The examiner also noted there were no observed cardiac hypertrophy or dilation noted on the study and there was normal wall motion.  The Board highlights that this is in spite of the July 2016 VA examiner’s specific finding during examination that the METs level limitation noted (METs score was estimated at more than 3 up to 5) was due solely to the service-connected heart disability.  A remand is warranted to provide clarification as to these conflicting findings.  

2. Entitlement to TDIU prior to April 9, 2012 is remanded.

A TDIU may be assigned to a Veteran who meets certain disability percentage standards and is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.”  38 C.F.R. § 4.16(a).  Alternatively, if a Veteran is found to be unemployable because of service-connected disabilities, but does not meet the percentage standards set forth in § 4.16(a), as is the case here prior to April 9, 2012, the rating authority should refer the matter to the director of the Compensation Services for extraschedular TDIU consideration.  38 C.F.R. § 4.16(b).  

As noted above, in an October 2016 vocational assessment, the provider specifically found that it is at least as likely as not that the Veteran’s service-connected disabilities have rendered him unable to secure and follow substantially gainful occupation and that this unemployability dates back to at least 2009, when he last worked.  In light of this opinion that was supported by extensive rationale and a detailed review of the Veteran’s record, the Board finds that the issue of entitlement to TDIU prior to April 9, 2012, should be referred to the Director of the Compensation Services for extraschedular consideration.

The matter is REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected diastolic dysfunction associated with hypertension.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  The examiner must review the entire claims file and discuss the following:

a) Whether or not the current METs level was related to the service-connected diastolic dysfunction.

b) If the Veteran’s METs score was not solely due to cardiac function, the examiner must provide a revised METs score based solely on cardiac functioning.  

c) If the revised METs level could not be provided without resorting to mere speculation, the examiner must indicate why this is so, and determine whether the Veteran’s LVEF testing rendered a more accurate finding regarding cardiovascular manifestations alone.

To the extent possible, the examiner should identify any symptoms and functional impairments due to diastolic dysfunction associated with hypertension and discuss its effect on his occupational functioning and activities of daily living.

2. Refer the claim of entitlement to a TDIU prior to April 9, 2012, to the Chief Benefits Director or the Director of Compensation and Pension Service, for consideration of whether a TDIU on an extraschedular basis is warranted.  Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue.  See 38 C.F.R. § 4.16(b).



 

S. HENEKS

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	J. Cheng, Associate Counsel