Citation Nr: 19164166
Decision Date: 08/19/19	Archive Date: 08/19/19

DOCKET NO. 15-10 735
DATE: 	August 19, 2019

ORDER

Service connection for a psychosis for the purpose of establishing eligibility for VA treatment only under the provisions of 38 U.S.C. § 1702, is dismissed.  

Service connection for myeloma, to include as due to herbicide (Agent Orange) exposure, is dismissed. 

Entitlement to an initial disability rating greater than 10 percent for type II diabetes mellitus is dismissed. 

Entitlement to an effective date earlier than May 17, 2016, for the award of service connection for type II diabetes mellitus, is dismissed. 

Service connection for a depressive disorder and alcohol abuse disorder as secondary to service-connected posttraumatic stress disorder (PTSD), is granted.

Entitlement to an initial disability rating greater than 70 percent for PTSD with depression and alcohol abuse is denied.  

An effective date of June 29, 2012, but no earlier, for the award of service connection for PTSD with depression and alcohol abuse, is granted.   

REMANDED

Service connection for thoracic myelopathy as a residual of a meningioma tumor, to include as due to herbicide (Agent Orange) exposure, is remanded.

Service connection for peripheral neuropathy of the LEFT upper extremity, to include as due to herbicide (Agent Orange) exposure, is remanded.

Service connection for peripheral neuropathy of the RIGHT upper extremity, to include as due to herbicide (Agent Orange) exposure, is remanded.

Service connection for peripheral neuropathy of the LEFT lower extremity, to include as due to herbicide (Agent Orange) exposure, is remanded.

Service connection for peripheral neuropathy of the RIGHT lower extremity, to include as due to herbicide (Agent Orange) exposure, is remanded.

Service connection for hypertension, to include as due to herbicide (Agent Orange) exposure, and to include as secondary to service-connected type II diabetes mellitus, is remanded.

Entitlement to an effective date earlier than May 27, 2015 for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is remanded. 

FINDINGS OF FACT

1. During the August 2018 Board videoconference hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he was withdrawing from the appeal the following four issues:  service connection for a psychosis for the purpose of establishing eligibility for VA treatment only under the provisions of 38 U.S.C. § 1702; service connection for myeloma; an initial disability rating greater than 10 percent for type II diabetes mellitus; and an earlier effective date prior to May 17, 2016 for the award of service connection for type II diabetes mellitus.  

2. The Veteran’s current depressive disorder and alcohol abuse disorder is proximately due to or the result of his service-connected PTSD disability.

3. The Veteran’s service-connected PTSD with depression and alcohol abuse is manifested by psychiatric symptoms causing occupational and social impairment, with deficiencies in most areas, but not total occupational and social impairment.

4. The Veteran filed an informal claim for service connection for “depression” on June 29, 2012 on a VA Form 21-4138 (statement in support of claim).  This informal claim constitutes the earliest claim of record for service connection for PTSD, when interpreting this filing liberally and sympathetically. 

CONCLUSIONS OF LAW

1. The criteria are met for withdrawal of an appeal by the Veteran for the issue of service connection for a psychosis for the purpose of establishing eligibility for VA treatment only under the provisions of 38 U.S.C. § 1702.  38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.

2. The criteria are met for withdrawal of an appeal by the Veteran for the issue of service connection for myeloma, to include as due to herbicide (Agent Orange) exposure.  38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.

3. The criteria are met for withdrawal of an appeal by the Veteran for the issue of an initial disability rating greater than 10 percent for type II diabetes mellitus.  38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.

4. The criteria are met for withdrawal of an appeal by the Veteran for the issue of entitlement to an effective date earlier than May 17, 2016 for the award of service connection for type II diabetes mellitus.  38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.

5. The criteria are met for service connection for depressive disorder and alcohol abuse disorder as secondary to service-connected PTSD.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a); Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001).   

6. The criteria are not met for an initial rating greater than 70 percent for the Veteran’s service-connected PTSD with depression and alcohol abuse.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9411.  

7. The requirements are met for an earlier effective date of June 29, 2012, but no earlier, for the award of service connection for PTSD with depression and alcohol abuse.  38 U.S.C. §§ 5101(a), 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.157, 3.160(c), 3.400 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service in the U.S. Army from July 1967 to March 1970.  He served on the Republic of Vietnam landmass during the Vietnam Era. 

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from July 2013, August 2015, and September 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  

In August 2018, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is associated with the Veteran’s claims file. 

In August 2018 and before that time, the Veteran, through his attorney, submitted additional private medical evidence and medical treatise evidence directly to the Board.  This was submitted after the Agency of Jurisdiction (AOJ) last considered the appeal in the September 2017 Supplemental Statement of the Case (SSOC). Significantly, along with this evidence, the Veteran submitted an August 2018 waiver of AOJ review.  See 38 C.F.R. §§ 20.800, 20.1304(c) (2018).  In any event, the Board would have considered this additional medical evidence anyway, without any AOJ review.  That is, in the present case, the Veteran’s VA Form 9s (Substantive Appeals) were received by the AOJ in March 2015 and October 2017, which is after the February 2, 2013 effective date of the new statute permitting initial review by the Board of any new evidence submitted by the Veteran, without the need for AOJ review.  See 38 U.S.C. § 7105(e); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165.  Therefore, under both the automatic waiver provisions and the August 2018 waiver of AOJ review the Veteran submitted, the Board can proceed with initial review of any additional evidence either submitted by the Veteran or secured by VA, without referral to the AOJ.    

I.  VA’s Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018).  

In any event, in the decision below, the Board has granted several of the issues on appeal.  Therefore, the benefits sought on appeal have been granted in full for these particular issues.  Accordingly, regardless of whether the notice and assistance requirements have been met with regard to these issues, no harm or prejudice to the Veteran has resulted.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.

Moreover, neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist, for the various issues on appeal being denied or not fully granted.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  

With regard to the particular issues being remanded in the present decision, the Board finds that further evidentiary development is needed and will be discussed in the remand below.  Therefore, an analysis regarding compliance with the VCAA for these particular issues is not required at this time.  

 

II.  Dismissal of Claims

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  The withdrawal must be in writing.  Id. 

During the August 2018 Board videoconference hearing, the Veteran withdrew from the appeal the following four issues:  service connection for a psychosis for the purpose of establishing eligibility for VA treatment only under the provisions of 38 U.S.C. § 1702; service connection for myeloma; an increased rating greater than 10 percent for type II diabetes mellitus; and an earlier effective date prior to May 17, 2016 for the award of service connection for type II diabetes mellitus.  The Veteran’s withdrawal of these particular issues at the videoconference hearing was clear and unambiguous.  See 38 C.F.R. § 20.204(b); DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011).  

That is, during the August 2018 Board videoconference hearing, the Veteran, assisted by his attorney, explicitly, unambiguously, and with a full understanding of the consequences, withdrew these four issues.  The undersigned VLJ clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to those four issues.  In addition, the VLJ discussed the consequences of withdrawing an appeal, and the Veteran expressed that he fully understood those consequences.  See hearing transcript at pages 2-3.  Finally, in the August 2018 attorney letter, the Veteran’s attorney reiterated that these four issues had been withdrawn at the videoconference hearing.  All of these facts are significant because the Federal Circuit Court recently adopted the DeLisio rule that a withdrawal must be 1) explicit, 2) unambiguous, and 3) done with a full understanding of the consequences of such action by the appellant, with the subsequent Board dismissal decision including findings as to all three elements.  Acree v. O’Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018).  The Board concludes all three elements were met here for the withdrawal, such that the withdrawal of these four issues is valid.   

As such, in the present case, the Veteran has withdrawn these four issues on appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration for these particular issues.  See 38 C.F.R. § 20.204(b).

Accordingly, the Board does not have jurisdiction to review these four issues.  It follows that they are dismissed.

III.  Secondary Service Connection (SSC) for Depression

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  

When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations.  Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). 

A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(a).  To be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred.  Frost v. Shulkin, 29 Vet. App. 131, 138 (2017) (holding that there was not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis).

Moreover, secondary service connection may also be established, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(b).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448.  

A VA medical opinion regarding both the causation and aggravation facets of a secondary service connection claim must be provided in a secondary service connection claim.  See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)).  Moreover, when addressing secondary service connection, a VA medical opinion should not combine causation and aggravation; separate findings and rationale should be provided for each one.  Atencio v. O’Rourke, 30 Vet. App. 74, 90 (2018).

In summary, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).

In determining whether service connection is warranted, on either a direct or secondary basis, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

The Veteran is already service-connected for the underlying primary disability (PTSD), by the VA.  See August 2015 rating decision.  Although the Veteran’s service treatment records (STRs) are negative for any complaint, treatment, or a diagnosis of mental health problems during active duty, the Veteran credibly reported experiencing a stressor of incoming rocket and mortar fire while in Vietnam.  His service personnel records (SPRs) confirm the Veteran served in his military occupational specialty (MOS) as a military policeman.  He was assigned in this capacity to the 716th Military Police Company while stationed in Vietnam in the late 1960s.  The RO found that the details and time frame of the events he reported experiencing are consistent with his MOS and unit of assignment and with information obtained from official sources regarding the unit history and events that occurred.  It was noted that during the TET offensive, the Veteran’s unit came under direct attack.  He also viewed the bodies of dead soldiers.  See also May 2015 PTSD stressor statement (VA Form 21-0781); December 2015 buddy statement from sister.  Therefore, exposure to an in-service traumatic stressor was conceded by the RO.  The August 2015 VA psychological examiner also attributed a current diagnosis of PTSD to the Veteran’s in-service stressors.  As such, the RO granted the Veteran service connection for PTSD, with a 70 percent rating assigned from May 27, 2015.  

But the Board has also considered whether the Veteran’s PTSD claim raised the issue of whether service connection is warranted for any other acquired psychiatric disorder in addition to PTSD, such as depression.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record).  

Upon review of the evidence of record, the Board grants the appeal for service connection for a depressive disorder and alcohol abuse disorder as secondary to service-connected PTSD. 

With regard to secondary service connection, there is probative medical evidence of record indicating that the Veteran’s depressive disorder and alcohol abuse disorder is proximately due to or the result of his service-connected PTSD disability.  38 C.F.R. § 3.310(a).  In this regard, VA and private mental health treatment records dated from 2012 to 2017 confirm the Veteran has depression and alcohol abuse as secondary to or as a component of his service-connected PTSD.  See 38 C.F.R. § 3.310(a).  Specifically, VA and private treatment records first note diagnoses of depression and alcohol abuse in 2012.  An April 2012 Centra Health mental health consult discussed depressive symptoms in the context of his Vietnam experiences.  A July 2015 VA psychiatry consult recommended the Veteran take mirtazapine at bedtime for sleep, mood, depression, “and other PTSD symptoms.”  An August 2017 VA psychiatry outpatient note assessed that mirtazapine is helping the Veteran sleep, but its GABAergic inhibitory action is not enough to supply serotonergic action to overcome his depression and anxiety from his service-connected PTSD.  Moreover, VA mental health professionals in VA psychiatric records dated from 2014 to 2017 officially diagnosed the Veteran with depressive disorder per the DSM-5, in the context of therapy for his service-connected PTSD.  

With regard to secondary service connection, in addition, there is clear medical evidence of record establishing that the Veteran’s alcohol abuse disability was caused by or is at least associated with his primary service-connected PTSD.  See 38 C.F.R. § 3.310(a); Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001).  In particular, the August 2015 VA psychological examiner commented that the Veteran used alcohol for a long time to help him sleep.  Sleeping was difficult due to his service-connected PTSD symptoms of anxiety and nightmares.  He used alcohol to cope with some of his PTSD symptoms.  However, the Veteran was able to curtail his drinking after he started taking the medication Mirtazapine for his PTSD, which he finds helpful.  As such, the VA examiner inferred he no longer has to self-medicate his PTSD disability with alcohol.  

In this regard, with respect to claims, as here, filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person’s willful misconduct, including abuse of alcohol or drugs.  See 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.1(m), (n), 3.301(d).  VA’s General Counsel has also confirmed that direct service connection for a disability that is a result of a claimant’s abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990.  See VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998).  Therefore, in the present case, service connection for any primary alcohol or drug abuse disorder the Veteran has would generally be precluded by law.

However, service-connected disability compensation may be awarded for an alcohol or drug abuse disability secondary to a service-connected disability or use of an alcohol or drug abuse disability as evidence of the increased severity of a service-connected disability.  Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001).  In this regard, the Federal Circuit cautioned that compensation would only result where there was clear medical evidence establishing that the alcohol or drug abuse disability was caused or aggravated by a veteran’s primary service-connected disability.  Id.  

As described in detail above, there is clear medical evidence of record establishing that the Veteran’s alcohol abuse disability was caused by or is strongly associated with his primary service-connected PTSD disability.  Thus, based on the above evidence of record, the Veteran’s service-connected PTSD disability also includes his alcohol abuse disability.  See again 38 C.F.R. § 3.310(a); Allen, 237 F.3d at 1376.  

The Board acknowledges that some of the private treatment records dated in 2012 attribute his depression to several post-service factors.  Regardless, when it is not possible to separate the effects of a service-connected condition from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected condition.  Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Thus, the Board will attribute the Veteran’s depression to his service-connected PTSD.

In any event, the present decision is considered a full grant of the benefits sought by the Veteran for his acquired psychiatric disorder claim to include depression and alcohol abuse.  

Accordingly, secondary service connection for depressive disorder and alcohol abuse disorder is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  The Board emphasizes that it is granting secondary service connection for depressive disorder and alcohol abuse disorder on the basis that it is the direct result of the Veteran’s service-connected PTSD disability, as opposed to aggravation.

IV.  Increased Rating for PTSD with Depression and Alcohol Abuse

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7. 

The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

The Board must also assess the competence and credibility of lay statements and testimony.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms.  See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009).  The Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected psychiatric disability.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (discussing general competency of a Veteran to report psychiatric symptoms).

The Veteran’s service-connected PTSD with depression and alcohol abuse is rated as 70 disabling under Diagnostic Code 9411 (PTSD).  38 C.F.R. § 4.71a (2018).  

The Veteran has appealed the original August 2015 rating decision that granted service connection for his PTSD.  It also appears the RO considered depressive symptoms when it granted the Veteran his initial 70 percent rating in the August 2015 rating decision on appeal.  What’s more, in its present decision, the Board has also considered depression and alcohol abuse to be part of his service-connected PTSD disability; in short, all his psychiatric symptomatology is under consideration in determining whether a higher rating above 70 percent is warranted here.  

In any event, the Veteran has expressed disagreement with the initial 70 percent rating assigned since May 27, 2015.  Thus, this case could result in “staged ratings” based upon the facts found during the period in question.  See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The relevant time period for consideration in a claim for an increased initial disability rating is the period beginning on the date that the claim for service connection was filed.  Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007).  That is to say, the Board must consider whether there have been times since the effective date of his award when his psychiatric disability has been more severe than at others for the time period from May 27, 2015 to the present.  Id. 

However, the Board is cognizant that 38 C.F.R. §§ 4.1 and 4.2 and 4.41 require VA adjudicators to view each disability “in relation to its history” to “accurately reflect the elements of disability present,” respectively.  See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was “only entitled to disability compensation for the period after … the date he filed his original claim for benefits,” VA regulations still require the disability to be “evaluated in light of its whole recorded history”).  In Schafrath v. Derwinski, the CAVC explained, “These requirements for evaluation of the complete medical history of the claimant’s condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition.” 1 Vet. App. 589, 594 (1991).  Therefore, the Board has also considered all his psychiatric symptomatology in the record since his separation from service. 

Mental health disorders are evaluated under the general rating formula for mental disorders, a specific rating formula presented under 38 C.F.R. § 4.130.  In addition, the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-5) provides guidance for the nomenclature employed within 38 C.F.R. § 4.130.  

When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered.  38 C.F.R. § 4.126(a).  In addition, the evaluation must be 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.  Id.  Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5).  See 79 Fed. Reg. 45,094 (August 4, 2014).  VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014.  See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015).  In the present case, the RO certified the Veteran’s appeal to the Board in September 2017, which is after August 4, 2014.  Thus, the amended 38 C.F.R. § 4.125 conforming to the DSM-5 is applicable in the present case.  

As pertinent to this issue, the Board recognizes that Global Assessment of Functioning (GAF) scores were previously utilized under the DSM-IV.  However, the Court recently held that “the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies,” (such as the present case), for the reasons that the DSM-5 abandoned the GAF scale and VA has formally adopted the DSM-5.  Golden v. Shulkin, 29 Vet. App. 221, 225 (2018).  Changes brought by the DSM-5 included removal of the GAF scale, in part due to “conceptual lack of clarity” and “questionable psychometrics in routine practice.”  DSM-5 at 16.  Given the American Psychiatric Association’s rejection of the GAF scale and VA’s formal adoption of the DSM-5, “[a]ny reliance on evidence that expert consensus-as adopted by VA-has determined to be unreliable would be impossible to justify with an adequate statement of reasons or bases.” Golden, 29 Vet. App. at 225.  The Court determined that “the Board should not use such evidence at all when assigning a psychiatric rating in cases where the DSM-5 applies.”  Id.  The Court emphasized that symptoms have always been the primary focus when assigning a psychiatric rating and inclusion of GAF scores in such cases may result in remand from the CAVC.  Id. at 225-26. 

As provided by the General Rating Formula, a 70 percent rating is in order 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 relationships.  38 C.F.R. § 4.130.   

A 100 percent rating is in order when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent 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. 

A veteran need not exhibit “all, most, or even some” of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating.  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Rather, the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating.  Id.  In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation.  Mauerhan, 16 Vet. App. at 442.

Under the General Rating Formula, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria.  Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.  The Federal Circuit has held that the General Rating Formula requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency, or duration (even if unlisted), but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).  The Federal Circuit endorsed an approach whereby the Board would identify the symptoms associated with the service-connected mental health disability, determine whether they are of the kind enumerated in the regulation, and if so, assess whether they result in the level of occupational and social impairment specified by a particular rating.  Id.  The 70 percent disability rating regulation, in particular, contemplates initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies “in most areas.”  Id.  Reading §§ 4.126 and 4.130 together, it is evident that the “frequency, severity, and duration” of a veteran’s symptoms must play an important role in determining his disability level.  Id. at 117.  

Upon review of the evidence, the Veteran does not meet the criteria for a 100 percent evaluation for his service-connected PTSD with depression and alcohol abuse.  38 C.F.R. § 4.7.  That is, the medical and lay evidence of record is not indicative of someone with psychiatric symptomatology causing total occupational and social impairment, which is required for the 100 percent rating.  38 C.F.R. § 4.130.  In adjudicating this claim, the Board has also considered additional, similar symptomatology not specifically addressed in the 100 percent criteria under the General Rating Formula, but still causing the appropriate level of occupational and social impairment for a 100 percent rating.  See again Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  

In making this determination, the Board has reviewed both the medical and lay evidence of record.  In particular, the following evidence of record is not supportive of a higher 100 percent rating for the Veteran’s PTSD with depression and alcohol abuse:  

Police officer examinations dated in May 1997 and May 1998 revealed a normal psychiatric profile.

VA treatment records dated in 2012 indicated that the Veteran’s depression is stable, as he is not taking any psychiatric medications.

A Centra Health history and physical dated in March 2012 revealed diagnoses of alcohol abuse and depression.  A private consult dated in March 2012 recorded a history of depression and alcohol abuse.  A Centra Health Virginia Baptist Hospital discharge summary dated in April 2012 noted the Veteran has depression and alcohol abuse diagnoses.  

At an April 2012 Centra Health mental health consult, the Veteran had no previous psychiatric treatment history.  But he does have a past medical history of depression and alcohol abuse.  He is a divorced, retired policeman.  After 9/11 he returned to work in private security.  He worked in security guard work until March 2012, leaving due to leg problems.  As to alcohol use, he takes one to three beers every day with shots.  Upon examination, the Veteran was lying in a hospital bed dressed in a hospital gown (this hospitalization was for his thoracic tumor).  He was oriented in all spheres.  His attention was within normal limits.  Speech was a normal rate and volume.  He was described as “very pleasant and cooperative.”  He described his own mood as okay.  His mood was assessed as “hopeful.”  His affect was appropriate as was his behavior.  He appeared to have an average cognitive ability.  He showed no memory impairment.  His form of thought was within normal limits as was his content of thought.  He denied hallucinations.  His insight was minimized, and his judgment was fair.

At the same April 2012 Centra Health mental health consult, the only psychiatric diagnosis rendered was to rule out substance abuse.  It was determined the Veteran was at low risk for harm to himself or others.  He denied suicidal ideation and denied homicidal ideation.  Considering his mental health status, recent behavior, and other relevant information, the risk assessment did not suggest a substantial likelihood of harm to self or others in the near future.  The Veteran had no mental health treatment history.  He had never made a suicide attempt or had suicidal ideation.  But it was noted he has anxiety.  He stated the only time he felt like he had depression was after he came back from Vietnam.  He was currently “help seeking” and “eager” to start on rehabilitation to get the use of his legs back.  All of these were positive factors.  The only negative factor might be his drinking, which he does not consider to be a problem.  He was future-oriented.  The report added the Veteran is financially secure and “he does have a supportive family.”  No recommendations were given to him, as he did not believe that he had a problem with alcohol, although he admits to having a drink or two and smoking.   

At a June 2012 VA primary care consult and at August 2013 and September 2014 VA outreach notes, good or appropriate hygiene and appropriate dress were observed.  The Veteran was alert and well-oriented.  He possessed a good understanding and communication. 

On July 10, 2012, the Veteran filed a formal claim for service connection (on a VA Form 21-526) for depression / memory loss.  No further description was added. 

At an August 2015 VA psychological examination, the VA examiner determined the Veteran was competent to handle his affairs.  His PTSD symptoms include depressed mood, anxiety, panic attacks, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and inability to establish and maintain effective relationships, which cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.  Most importantly, the VA examiner concluded the Veteran’s level of occupational and social impairment for his psychiatric problems is best summarized by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and / or mood.  This is indicative of a 70 percent rating under 38 C.F.R. § 4.130.  

The August 2015 VA psychological examiner discussed the Veteran’s work history and social impairment.  The Veteran reported he was very angry upon his return from Vietnam.  He said he became "like a survivalist and recluse."  He did marry and have two children (now in their 30s).  His marriage ended in divorce in 2002 after 20 years of marriage.  He lived in the country until moving in with his one friend and his wife in Hagerstown.  He worked as a loan officer for a time but was not well suited for that job and then became a security officer.  He stopped working in 2012 after an operation for a spinal tumor.  He is isolated and avoids any kind of crowd.  He said he drinks to help him sleep - otherwise he has trouble falling asleep.  He formerly drank a lot of beer but now prefers brandy because he is more quickly intoxicated.  He does not belong to any clubs or organizations and drinks alone.  He will rarely go to a restaurant but is more likely to attend a picnic or barbecues.  Notably, he does feel close to his children and grandchildren and has frequent contact with them.  The Veteran is temporarily renting a room in Williamsport, Maryland in the home of a friend.  The Veteran stated that his roommate is not there very much.  The Veteran still looks after his dog and his bird.  The Veteran grew up in Maryland and is in contact with his siblings as well as his children and grandchildren, most of whom reside in Virginia.  The Veteran stated "I was kind of a recluse type of person.  They would want to go out and I didn't..I wasn't a social type.  I would rather be by myself or go out in the woods or something.  I don't socialize, and I don't have any friends, except Gary."  He elaborated that he and Gary do not really do anything together, as the Veteran spends almost all of his time in his room.  He likes to watch TV and do oil painting.  The VA examiner found the Veteran had difficulty in establishing and maintaining effective work and social relationships and inability to establish and maintain effective relationships.  This is indicative of a 70 percent rating under 38 C.F.R. § 4.130.  

The August 2015 VA psychological examiner commented that the Veteran did not receive psychiatric treatment until recently.  He is now seen at the Vet Center in Martinsburg, West Virginia for counseling and is also followed by psychiatry with a current prescription for Mirtazapine.  He said he struggled for so long with sleep, so he used to drink to sleep.  He stopped drinking since starting his psychiatric medication, which he finds helpful. 

The August 2015 VA psychological examiner, upon examination, noted the Veteran was casually dressed and adequately groomed.  He ambulated with the aid of a walker.  His attitude was pleasant, polite, and cooperative.  His speech was fluent and coherent.  His mood was anxious and depressed.  His affect was tearful.   He exhibited no hallucinations.  His thoughts were logical and goal-directed.  His thought content contained no delusions.  He displayed no suicidal or homicidal ideation.  He was alert and oriented to all spheres.  His attention level was good.  He had no current suicide risk factors.  He did not express feelings of hopelessness or helplessness at that time.  None of the Veteran’s psychiatric symptomatology as described by the August 2015 VA psychological examiner was determined to cause “total occupational and social impairment,” which is required for a higher 100 percent rating.  

VA psychiatry treatment notes dated from 2014 to 2017 document the Veteran receiving counseling and being on psychiatric medications for PTSD and depression.  His alcohol abuse continued.  He frequently exhibited a depressed and anxious mood.  However, there were specific notations of no delusions, no auditory or visual hallucinations, no suicide ideation, no homicide ideation, and no danger to self or others.  He was always appropriately groomed.  He exhibited a fair memory, good personal hygiene, appropriate dress, and was oriented to all spheres.  He did not show irritable behavior, angry outbursts, or acting aggressively.  He did not have thoughts of suicide or self-harm and did not express feelings of hopelessness or helplessness, according to these VA psychiatric records.  There was no mention of psychiatric symptomatology causing total occupational and social impairment, necessary for a 100 percent rating. 

With regard to lay evidence, neither the Veteran nor his attorney has offered a specific argument in the record for why a 100 percent rating should be granted for PTSD with depression and alcohol abuse, at any point during the appeal.  In fact, at the August 2018 videoconference hearing, the Veteran’s attorney mentioned that she would discuss with the Veteran whether they would withdraw the increased rating appeal for PTSD.  

With regard to total occupational impairment, it is acknowledged the Veteran has been awarded a TDIU effective from May 27, 2015.  This was due to the severity of his service-connected PTSD, tinnitus, and type II diabetes mellitus.  It is unclear whether the Veteran has total occupational impairment due to his service-connected PTSD alone.

With regard to total social impairment, the Board finds that the Veteran does not have total social impairment, in light of the evidence discussed in detail above.  See 38 C.F.R. § 4.130.  He is divorced from his wife.  But notably, he does feel close to his children and grandchildren and has frequent contact with them.  He was noted to be temporarily renting a room in Williamsport, Maryland in the home of a friend.  The Veteran stated that his roommate is not there very much.  The Veteran still looks after his dog and his bird.  The Veteran grew up in Maryland and is in contact with his siblings as well as his children and grandchildren, most of whom reside in Virginia.  He is also able to interact with his VA therapy counselors.  Thus, he can still maintain some relationships, albeit with significant limitations and tension.  Moreover, the Board notes that the 70 percent evaluation he now has for PTSD with depression and alcohol abuse encompasses an inability to establish and maintain effective relationships.  In short, no medical or lay evidence of record reveals total social impairment for the Veteran during the course of the appeal.  

Most importantly, no VA or private mental health professional of record assessed the Veteran’s PTSD with depression and alcohol abuse as causing “total occupational and social impairment,” which is required for a higher 100 percent rating.  That is, no evidence of record demonstrated or assessed total occupational and social impairment due to any of his documented symptoms discussed in great detail above.  See again Vazquez-Claudio, 713 F.3d at 118 (the Veteran’s psychiatric symptoms must cause the level of occupational and social impairment specified in the General Rating Formula).  The Board finds the severity, frequency, and duration of any of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating.  In summary, the evidence of record weighs more heavily against an initial 100 percent rating for the Veteran.  The Veteran is adequately compensated for his level of occupational and social impairment for his PTSD with depression and alcohol abuse by way of a 70 percent rating.

With regard to the ameliorative effects of the Veteran’s psychiatric medication, the Board notes that the plain language of the criteria for a 10 percent rating under the General Rating Formula for Mental Disorders specifically contemplates the effects of psychiatric medication.  Consequently, Jones v. Shinseki, 26 Vet. App. 56 (2012) does not apply.  It follows that the Board’s evaluation of the Veteran’s service-connected PTSD with depression and alcohol abuse may include the ameliorative effects of his psychiatric medication.  See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016) (where the plain language of the diagnostic code contemplates the effects of medication, Jones is not applicable).

Accordingly, the Board finds that the evidence of record does not support an initial rating greater than 70 percent for the service-connected PTSD with depression and alcohol abuse.  38 C.F.R. § 4.3.  

Finally, for the Veteran’s service-connected psychiatric disability, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  

 

V.  Earlier Effective Date for SC PTSD with Depression and Alcohol Abuse

In an August 2015 rating decision, the RO granted service connection for PTSD, effective from May 27, 2015, which was the date the Veteran’s formal claim for service connection for PTSD was received by the RO.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  That is, under the amended regulations for claims effective March 24, 2015, the Veteran correctly filed a “complete” May 27, 2015 formal claim of service connection for PTSD in the form prescribed by the Secretary – a VA Form 21-526EZ.  See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.151(a), 3.155, 3.160.  The grant of service connection was based on the Veteran’s SPRs, private treatment records, VA treatment records, and the findings of the August 2015 VA psychological examiner.  

In a September 2015 formal NOD, the Veteran appealed the effective date assigned for the grant of service connection for PTSD.  The appeal has reached the Board. 

The Veteran and his attorney have contended that the current effective date assigned for the grant of service connection for PTSD (May 27, 2015), is incorrect.  He seeks an earlier effective date for the award of service connection of June 29, 2012, the date a previous informal claim for service connection for depression was filed.  He asserts this earlier informal claim for service connection for depression constitutes a claim of service connection for PTSD as well, when construing his filings liberally and sympathetically.  He cites to the case of Clemons v. Shinseki, 23 Vet. App. 1 (2009), for the holding a claimant is entitled to have all psychiatric diagnoses of record considered by the VA.  That is, under Clemons, the Veteran was entitled to have all possible mental health claims considered at the time of his first informal application for an acquired psychiatric disorder on June 29, 2012.  The Veteran’s depressive disorder he claimed service connection for on June 29, 2012, is part of his service-connected PTSD – they both stem from the same etiology of his Vietnam experiences.  Therefore, his PTSD disability should be effective back to his original June 29, 2012 informal claim for service connection.  It was also noted that the Veteran’s June 29, 2012 claim for depression was still open and “pending.”  See August 2018 attorney letter; August 2018 videoconference hearing.  

In any event, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form.  See Standard Claims and Appeals Forms, 79 Fed. Reg. 57660 (Sept. 25, 2014).  These amendments implemented the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date for benefits must be received in one of three specified formats.  The amendments completely rewrote 38 C.F.R. § 3.155, removing the provisions which allowed for the previous filing of informal claims.  The amendments also deleted former 38 C.F.R. § 3.157, which allowed for reports of examination or hospitalization to be treated as claims under certain circumstances.  The purpose of these amendments was to improve the quality and timeliness of the processing of veterans’ claims for benefits by standardizing the claims and appeals processes through the use of specific VA forms.  See again 79 Fed. Reg. 57660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155).  

However, the above amendments only apply to claims filed on or after March 24, 2015.  In the present case, the Veteran says he filed his informal claim for service connection for PTSD and depression prior to this date - on June 29, 2012.  There is neither an allegation from the Veteran nor any evidence of record that the Veteran filed any claim (on the proper standard form) for service connection for his PTSD and depression between March 24, 2015 and the current effective date assigned for his PTSD of May 27, 2015.  Thus, the amended regulations, effective beginning March 24, 2015, pertaining to the requirement of formal claims on the proper VA prescribed form, do not apply here.  Instead, the Board will examine whether the Veteran filed any formal or informal claim for his PTSD and depression prior to March 24, 2015.  Therefore, the former version of the applicable VA regulations pertaining to claims applies, allowing for informal claims and allowing for reports of examination or hospitalization to be treated as claims, under certain circumstances.  See 38 C.F.R. §§ 3.1 (p), 3.151, 3.155, 3.157 (2014).

Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2014).  Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant’s application.  38 U.S.C. § 5110(a).  

If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose.  38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).  

The applicable statutory and regulatory provisions require that VA look to all communications from a veteran which may be interpreted as applications or claims - formal and informal - for benefits.  In particular, VA is required to identify and act on informal claims for benefits.  See 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a) (2014).  The Federal Circuit has emphasized that VA has a duty to fully and “sympathetically” develop a veteran’s claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations.  See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  "The law does not expect the claimant to have the medical or legal expertise to file a claim requesting benefits for each technical disability in the causal chain of disabilities that composes his condition, and a claim must be read sympathetically."  DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011).

However, in determining whether an informal claim has been made, VA is not required to read the minds of the veteran or his representative.  Cintron v. West, 13 Vet. App. 251, 259 (1999).  

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary.  See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.151(a) (2014).  A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p) (2014).  Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim.  Such an informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a) (2014).  Again, VA is required to identify and act on informal claims for benefits.  38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a) (2014).  However, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”).  See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).  

In short, the essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing.  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits).

A pending claim is an application, formal or informal, which has not been finally adjudicated.  38 C.F.R. § 3.160(c); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009).  A finally adjudicated claim is defined as “an application, formal or informal, which has been allowed or disallowed by an agency of original jurisdiction.”  38 C.F.R. § 3.160(d).  Such an action becomes “final” by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earliest.  Id.  

The pending claims doctrine provides that a claim remains pending in the adjudication process-even for years-if VA fails to act on it.  Norris v. West, 12 Vet. App. 413, 422 (1999).  The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper.  Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) (recent Federal Circuit cases have not overruled the pending claim doctrine articulated in Norris); Myers v. Principi, 16 Vet. App. 228, 236 (2002) (since VA failed to issue SOC after valid NOD was filed, the original claim was still pending and is relevant to determining the effective date of a service connection award); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C. § 5107(b).

Upon review of the evidence, the Board finds that an earlier effective date of June 29, 2012, but not earlier, is granted for the award of service connection for PTSD with depression and alcohol abuse. 

With regard to the date of claim, in particular, the Board has considered whether a June 29, 2012 VA Form 21-4138 (statement in support of claim) constitutes an earlier, pending claim for service connection for PTSD.  This statement requested service connection for “depression.”  Resolving all doubt in favor of the Veteran and specific to the facts of this case, the Board finds that this statement infers an informal claim for service connection for PTSD as well.  38 C.F.R. §§ 3.1(p), 3.155(a); LaLonde, 12 Vet. App. at 382.  That is, it shows (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.  Brokowski, 23 Vet. App. at 84.  Moreover, this June 29, 2012 statement would be an informal, pending claim, part of the current claim stream, since it has not been finally adjudicated for the issues of service connection for depression and PTSD.  See 38 C.F.R. § 3.160(c); Myers v. Principi, 16 Vet. App. 228, 236 (2002).  

First, the Veteran did clearly show an intent to apply for benefits for service connection in the June 29, 2012 VA Form 21-4138 (statement in support of claim).  38 C.F.R. §§ 3.1(p), 3.151, 3.155(a).  That is, on this form, he stated he wrote he was “filing an informal claim for the following service connection conditions.”  One of those conditions was depression.  This fact is undisputed. 

Second, this intent to apply for benefits was communicated “in writing” on the June 29, 2012 VA Form 21-4138 (statement in support of claim).  Brokowski, 23 Vet. App. at 84.  This fact is also undisputed. 

Third, and finally, in order for this June 29, 2012 VA Form 21-4138 (statement in support of claim) to be construed as a claim for service connection for PTSD, the Veteran must “identify the benefit sought.”  38 C.F.R. § 3.155(a).  This is the central question in the present case.  To “identify the benefit sought” means that the claimant must describe the nature of the disability for which he is seeking benefits.  His identification of the benefit sought does not require any technical precision.  See Ingram, 21 Vet. App. at 256-57.  A claimant may identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability.  Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).  For psychiatric disabilities, the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  On this issue, a claim for disability compensation is not always limited to the specific disability listed on the application for compensation.  Clemons, 23 Vet. App. at 9.  

The Veteran did not specifically mention PTSD in the earlier June 29, 2012 VA Form 21-4138 (statement in support of claim).  Instead he mentioned service connection for “depression.”  However, from the record, it appears that the Veteran’s first documented PTSD diagnosis in 2015 arises from the same symptoms for which the Veteran was seeking benefits for in his June 29, 2012 informal claim for service connection for depression and does not relate to an entirely separate claim.  See again Clemons, 23 Vet. App. at 5 (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record).  Once again, in order to identify the benefit sought, the claimant may satisfy this requirement by referring to “a body part or system” that is disabled, or by describing the symptoms of that disability.  Brokowski, 23 Vet. App. at 86-87.   

Here, the Board finds the earlier June 29, 2012 VA Form 21-4138 (statement in support of claim) for service connection for depression was equivalent to a claim for service connection for PTSD, as the depression and anxiety he complained of back in 2012 have been demonstrated to be secondary to underlying, chronic service-connected PTSD.  Specifically, VA and private treatment records beginning in March 2012 first note diagnoses of depression and alcohol abuse.  Most importantly, an April 2012 Centra Health mental health consult the Veteran submitted around the time of his June 29, 2012 informal claim discussed anxiety and depression and alcohol abuse in the context of his Vietnam experiences.  In Clemons, the Court stated that “as a self-represented layperson at the time his claim was filed, the appellant neither had the legal or medical knowledge to narrow the universe of his claim or his current condition to PTSD.”  Clemons, 23 Vet. App. at 4.  The Court emphasized that it is generally within the province of medical professionals to diagnose or label a mental condition, not the claimant.  Id. at 5.  

It follows that the Veteran’s earlier June 29, 2012 VA Form 21-4138 (statement in support of claim) could be construed as “evidencing a belief in entitlement” to service-connected compensation for PTSD, when reading this document sympathetically.  38 C.F.R. § 3.1(p).  Therefore, the Board agrees that the earlier June 29, 2012 VA Form 21-4138 (statement in support of claim) does “identify the benefit sought” in accordance with 38 C.F.R. § 3.155(a).  “The law does not expect the claimant to have the medical or legal expertise to file a claim requesting benefits for each technical disability in the causal chain of disabilities that composes his condition, and a claim must be read sympathetically.”  DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011).  The Court in DeLisio further explained that “[a] claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition…”  Id. at 53.  The Court in DeLisio added that “upon the filing of a claim for benefits, the Secretary generally must investigate the reasonably apparent and potential causes of the veteran’s condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant’s filing.”  Id.  

In summary, when considering the evidentiary context in which the earlier June 29, 2012 VA Form 21-4138 (statement in support of claim) was filed, the Board agrees that the Veteran’s June 29, 2012 informal claim for depression does “identify the benefit sought” for PTSD, in accordance with 38 C.F.R. § 3.155(a).  As particularly pertinent to this finding, the Federal Circuit Court (Federal Circuit) recently addressed a similar factual scenario in the case of Shea v. Wilkie, No. 2018-1735, 2019 U.S. App. LEXIS 18496 (Fed. Cir. June 20, 2019).  The Federal Circuit held that if a claimant’s filings refer to specific medical records which contain a reasonably ascertainable diagnosis of a disability (in that case PTSD as well), the claimant has raised an informal claim for that disability (PTSD), in that he has identified the benefits sought.  The Federal Circuit conducted a review of its precedent regarding informal claims, and pro se filings in particular, concluding that “while a pro se claimant’s claim must identify the benefit sought, the identification need not be explicit in the claim-stating documents, but can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.”  Id.  (Internal quotations omitted).  VA must look “beyond the four corners of [claims] documents when the documents themselves point elsewhere,” such as to medical records.  Id.  The Federal Circuit added that it would be a “restrictive” interpretation of § 3.155(a) for VA to require the application for benefits to “contain words that themselves refer to a psychiatric disability or to mental-health symptoms, as opposed to language that points to records mentioning such a condition in a way that, sympathetically read, is properly understood as seeking benefits for such a condition.”  Id.  

In the present case, the Board has carefully considered the April 2012 Centra Health mental health consult, which discussed anxiety and depression and alcohol abuse in the context of his Vietnam experiences, around the time the Veteran submitted his June 29, 2012 informal claim for depression.  At a later time (2014 / 2015), VA mental health professionals determined that his correct mental health diagnosis was in fact PTSD.  Thus, read sympathetically and liberally, the date of June 29, 2012 is the earliest date of an informal claim for service connection for PTSD, as this document does “identify the benefit sought” for PTSD, in accordance with 38 C.F.R. § 3.155(a).  

However, the evidence does not demonstrate an informal claim for service connection for PTSD or other psychiatric disability was received within one year after the Veteran’s separation from military service in March 1970, so the effective date obviously cannot be the day following his separation from service.  38 U.S.C. § 5110 (b)(1); 38 C.F.R. §3.400(b)(2)(i).  Moreover, the claims folder contains no other communication from the Veteran or his attorney indicating an intent to seek, or a belief in entitlement to, service connection for a psychiatric disability or PTSD after his separation from service in March 1970, but before the June 29, 2012 effective date assigned.  See 38 C.F.R. §§ 3.1(p), 3.155(a).  Lalonde v. West, 12 Vet. App. 377, 382 (1999).  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).  

Although the Veteran’s PTSD and depression and alcohol abuse listed in private medical records dated in March and April of 2012 predates the Veteran’s June 29, 2012 claim, these private treatment records could not support an application for compensation under 38 C.F.R. § 3.157(b) as VA medical records and private medical records cannot be accepted as informal claims for disabilities where service connection for that disability has not been established.  See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established).  See also Pacheco v. Gibson, 27 Vet. App. 21 (2014) (construing ambiguity contained in section 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim).

Moreover, the issue of clear and unmistakable error (CUE) in a specific prior RO or Board decision on the issue of service connection for PTSD or depression has not been raised by the Veteran or his attorney and is not before the Board at this time.  38 C.F.R. §§ 3.104(b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995); Flash v. Brown, 8 Vet. App. 332, 340 (1995).  

The Board is also aware that “the ‘implicit denial’ rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly address that claim in its decision.”  Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009).  The key question in the implicit denial inquiry is whether it would be clear to a reasonable person that VA’s action that expressly refers to one claim is intended to dispose of others as well, based on several factors.  Adams, 568 F.3d at 962-63.  However, there was no explicit or implicit reference to any psychiatric disability or symptoms thereof in the earliest April 1970 rating decision of record.  This rating decision granted service connection for recurrent headaches with an initial 0 percent rating, and there was no earlier informal claim from the Veteran for any psychiatric disability.  It follows that the “implicit denial rule” holdings are inapplicable to the present case.  See e.g., Cogburn v. Shinseki, 24 Vet. App. 205, 212-13 (2010) (citing Adams v. Shinseki, 568 F.3d 956, 963-64 (Fed. Cir. 2009)) (the four factors to be considered includes: (1) the specificity of the claims or the relatedness of the claims; (2) the specificity of the adjudication; (3) timing of the claims; and (4) whether the claimant is represented).  

With regard to the date of entitlement for PTSD, the term “date entitlement arose” is not defined in the current statute or regulation.  However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought.  This is determined on a “facts found” basis.  See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000).  It is important to note that an effective date generally can be no earlier than the “facts found.”  DeLisio v. Shinseki, 25 Vet. App. 45 (2011).  These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation.  See generally 38 C.F.R. § 3.400.  For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested.  Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008).  However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers.  McGrath, 14 Vet. App. at 35.  It is possible that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis.  DeLisio, 25 Vet. App. at 56.  

For PTSD, the date of entitlement in the present case is based on the legal requirements for PTSD at the time of the August 2015 rating decision that awarded service connection for PTSD: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in service stressor.  38 C.F.R. § 3.304(f) (2015).  In fact, the Federal Circuit has held that entitlement for PTSD could not arise until the pertinent regulatory requirements were satisfied, including the existence of medical evidence diagnosing PTSD.  Young v. McDonald, 766 F.3d 1348, 1352 (Fed. Cir. 2014).

With regard to the earliest date of entitlement, arguably, the first probative evidence of PTSD in the claims folder is the April 2012 Centra Health mental health consult, which discussed anxiety and depression and alcohol abuse in the context of the Veteran’s Vietnam experiences, around the time the Veteran submitted his June 29, 2012 informal claim for depression.  At a later time (2014 / 2015), VA mental health professionals determined that his correct mental health diagnosis was in fact PTSD, for which they rendered a current medical diagnosis.  For date of entitlement purposes, the Board is aware that a particular piece of evidence can demonstrate symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis.  DeLisio, 25 Vet. App. at 56.  On this issue, lay testimony could support a retrospective medical diagnosis of pre-existing PTSD.  Young, 766 F.3d at 1352.  See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Here, the August 2015 VA psychological examiner discussed the Veteran’s medical and lay history of depression and anxiety and alcohol abuse to determine that the Veteran has had PTSD related to his Vietnam experiences.  Thus, it is possible the Veteran’s date of entitlement for PTSD could have been present before 2012.  

Regardless, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).  It follows that even if entitlement arose for the Veteran’s PTSD with depression and alcohol abuse prior to the June 29, 2012 informal claim for service connection, the effective date for the grant of service connection for this disability cannot be earlier than the date the claim was received, which was June 29, 2012.  This is the earliest possible effective date for service connection for PTSD with depression and alcohol abuse, given the particular fact pattern of this Veteran’s case.  

In fact, the Veteran testified and his attorney submitted a written statement that the Veteran would consider his appeal “satisfied” by a grant of the earlier effective date for PTSD back to June 29, 2012.  See August 2018 attorney letter; August 2018 videoconference hearing at page 3.  Neither the Veteran nor his attorney have requested an effective date earlier than June 29, 2012 for the award of service connection for his PTSD and depression.  

Accordingly, the Board concludes that June 29, 2012 is the proper effective date for the award of service connection for PTSD with depression and alcohol abuse.  38 U.S.C. § 5107(b).

REASONS FOR REMAND

1. Service connection for thoracic myelopathy as a residual of a meningioma tumor, to include as due to herbicide (Agent Orange) exposure, is REMANDED. 

2. Service connection for peripheral neuropathy of the LEFT upper extremity, to include as due to herbicide (Agent Orange) exposure, is REMANDED.

3. Service connection for peripheral neuropathy of the RIGHT upper extremity, to include as due to herbicide (Agent Orange) exposure, is REMANDED.

4. Service connection for peripheral neuropathy of the LEFT lower extremity, to include as due to herbicide (Agent Orange) exposure, is REMANDED.

5. Service connection for peripheral neuropathy of the RIGHT lower extremity, to include as due to herbicide (Agent Orange) exposure, is REMANDED.

6. Service connection for hypertension, to include as due to herbicide (Agent Orange) exposure, and to include as secondary to service-connected type II diabetes mellitus, is REMANDED.

7. Entitlement to an effective date earlier than May 27, 2015 for the award of a TDIU, is REMANDED. 

First, since the above service connection and TDIU issues on appeal are already being remanded for further development, the Board sees the Veteran’s VA treatment records on file from the Martinsburg, West Virginia and Salem, Virginia VA Medical Centers (VAMCs) and associated facilities date to August 2017.  If the Veteran has had any additional treatment at the VA, these records should be obtained.  VA’s duty to assist includes obtaining records of VA medical treatment identified by the Veteran, regardless of their relevance.  Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016).  VA must continue to obtain such records unless it is documented that the records do not exist or that further efforts would be futile.  38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3).  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive knowledge of evidence generated by VA).  

Second, a remand is required in order for the AOJ to schedule the Veteran for the appropriate VA examination(s) and opinion(s) addressing what relationship, if any, exists between several of the Veteran’s current disabilities and his military service, to include his presumed in-service herbicide (Agent Orange) exposure in Vietnam.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  In this regard, his current disabilities on appeal are thoracic myelopathy as a residual of a meningioma tumor; peripheral neuropathy of the upper and lower extremities, and hypertension.  None of these disabilities are listed as a disease for which service connection may be presumed based upon the Veteran’s presumed exposure to herbicides in Vietnam.  However, the Court has held that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other non-presumptive conditions based on exposure to Agent Orange.  Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  That is, a VA physician cannot conclude that a disability cannot be associated with herbicide exposure simply because it is not on the list of presumptive service-connected diseases.  In summary, VA medical opinions are necessary to determine if any of these current disabilities are directly related to the Veteran’s presumed exposure to Agent Orange in Vietnam, despite none of them being listed as a presumptive herbicide-related disease by VA.  

Hypertension is not a disease that has been found to be associated with exposure to herbicidal agents.  See 38 C.F.R. § 3.309(e); see also Notice, Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007).  Regardless, although hypertension is not listed as a presumptive disease under 38 C.F.R. § 3.309(e) and is specifically excluded as being part of ischemic heart disease, the National Academy of Science’s (NAS) Institute of Medicine’s Veterans and Agent Orange: Update 2010, concluded that there was “limited or suggestive” evidence of an association between herbicide exposure and hypertension.  See Nat’l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2010 (2011) at 694; see also Notice, 77 Fed. Reg. 47924-47928 (2012).  Moreover, more recently, publication of Veterans and Agent Orange: Update 11 (2018) by the NAS found “sufficient evidence” of an association between hypertension and exposure to herbicide agents such as Agent Orange.  This 2018 publication upgraded hypertension’s previous classification in 2010 from the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association.  According to the NAS in 2018, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure.  This new information should be considered by the VA examiner on remand.

In addition, with regard to secondary service connection, for hypertension and peripheral neuropathy of the upper and lower extremities, the VA examiner should address whether these conditions are secondary to his service-connected type II diabetes mellitus.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  If a medical opinion does not address the secondary aspect of the claim, it is not sufficient for rating purposes.  Robinson v. Mansfield, 21 Vet. App. 545 (2008).  In doing so, this VA examiner must be sure to address both the causation and aggravation aspects of the theory of secondary service connection for hypertension.  See 38 C.F.R. § 3.310(a), (b); El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b).  

Third, if and only if the AOJ continues to determine that the Veteran does not meet the percentage standards under 38 C.F.R. § 4.16(a) for a TDIU prior to May 27, 2015, a remand is required for the Director of Compensation Service to determine if an extraschedular rating is warranted for a TDIU under 38 C.F.R. § 4.16(b), as the result of the service-connected disabilities.  This is because at present the Veteran does not met the schedular percentages for TDIU prior to May 27, 2015 – his combined rating is 0 percent.  See 38 C.F.R. §§ 4.16(a), 4.25.  But this may change upon the AOJ’s implementation of the Board’s grants in the present decision of secondary service connection for depression and alcohol abuse and grant of an earlier effective date of June 29, 2012 for the award of PTSD with depression and alcohol abuse.

Fourth, the issue on appeal of an earlier effective date prior to May 27, 2015 for the award of TDIU is inextricably intertwined with various other claims on appeal.  That is, if any of the service connection claims being remanded in the present Board decision are granted by the AOJ, this will directly impact the adjudication of the TDIU claim.  Also, since the Board in the present decision has granted secondary service connection for depression and alcohol abuse and an earlier effective date of June 29, 2012 for the award of PTSD with depression and alcohol abuse, the AOJ’s assignment of disability ratings and effective dates for these awards will impact the adjudication of the TDIU claim.  See 38 C.F.R. § 4.16(a) (2018).  For this reason, all of these issues must be resolved prior to resolution of the claim for TDIU.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation).  Accordingly, a remand is required for the AOJ to adjudicate the inextricably intertwined claims.  

For the earlier effective date issue for TDIU, the Board has considered securing a retrospective VA medical opinion for TDIU prior to May 27, 2015.  In this regard, the Court has determined that in claims for earlier effective dates, VA may need to obtain a “retrospective medical opinion” to determine the severity of a disability(ies) in prior years.  Chotta v. Peake, 22 Vet. App. 80, 84-85 (2008).  The Court cautioned, however, that “the duty to provide a medical examination is not automatic.  Rather, it applies only once the evidence has met the minimal threshold of indicating the existence of a medical question.”  Id. at 85 (citation omitted).  In other words, the duty to assist may require a retrospective VA medical evaluation where there is no medical evidence for the relevant time period.  Vigil v. Peake, 22 Vet. App. 63, 67 (2008).  But in the present case, prior to May 27, 2015, the claims file contains sufficient medical evidence of record addressing the Veteran’s various disabilities, such that a retrospective VA medical evaluation is unnecessary here.    

Moreover, in a claim for TDIU, the Board is cognizant that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator.  See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner”); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that “medical examiners are responsible for providing a ‘full description of the effects of disability upon the person’s ordinary activity,’ 38 C.F.R. § 4.10 (2013), but it is the rating official who is responsible for ‘interpret[ing] 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 present,’ 38 C.F.R. § 4.2 (2013).”). 

Therefore, these seven issues are REMANDED for the following action:

1. The AOJ should obtain VA treatment records from the VAMCs in Martinsburg, West Virginia and Salem, Virginia and associated facilities dated from August 2017 to the present and associate them with the claims file.  All attempts to secure these records, and any response received, must be documented in the claims file.  If no VA treatment records are available, a response to that effect is required and should be documented in the file.

2. After completion of step 1, the AOJ should schedule the Veteran for the appropriate VA examination and opinion to determine the etiology of the Veteran’s current hypertension disability.  Access to the electronic claims file must be made available to the VA examiner for review.  The examination should include any diagnostic testing or evaluation deemed necessary, including X-rays and laboratory testing.  The Veteran must be interviewed.  An explanation for all opinions expressed must be provided.	

THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: 

a.  For the Veteran’s current hypertension disorder, is it at least as likely as not (i.e., 50 percent or more probable) that his current hypertension began during service or within one year of separation from service?  In answering this particular question, the VA examiner should assess whether any of the Veteran’s in-service blood pressure readings were elevated or are initial manifestations of the Veteran’s current hypertension.  

b.  For the Veteran’s current hypertension disorder, is it at least as likely as not (i.e., 50 percent or more probable) that his current hypertension is otherwise causally related to his presumed exposure to herbicide agents in Vietnam, to include Agent Orange?  In answering this particular question, the VA examiner is advised that the mere fact that presumptive service connection has not been established by VA for hypertension is not dispositive of the issue of nexus.  Consideration must still be given to the Veteran’s presumed herbicide exposure in Vietnam, the subsequent development of hypertension, and the Update 11 (2018) by the National Academy of Science (NAS) discussed in more detail below.    

c.  Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran’s current hypertension disorder is caused by, proximately due to, or the result of his service-connected type II diabetes mellitus disability?

d.  Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran’s current hypertension disorder is aggravated by or worsened by his service-connected type II diabetes mellitus disability?

Aggravation is defined as a worsening beyond the natural progression of the disability.  Please address both the causation and aggravation elements of the Veteran’s secondary service connection claim.  Separate findings and rationale should be provided for both causation and aggravation.

e. In answering the questions above for hypertension, the VA examiner is advised of the following evidence:

STRs dated from 1967 to 1970 are negative for any complaint, treatment, or diagnosis of hypertension.  But the Veteran is presumed to have been exposed to herbicide agents during his military service in Vietnam.  STRs do reveal blood pressure readings of 112/80s (July 1967); 110/80 (March 1968); and 118/76 (March 1970 STR separation examination).  The Veteran’s attorney has asserted these readings were elevated as diastolic readings of 80 or higher are considered hypertensive.  

Post-service, a May 1998 private new patient evaluation noted that the Veteran’s hypertension was first discovered in 1983, which is 13 years after separation from active duty.  Police officer examinations dated in May 1997 and May 1998 revealed blood pressure readings of 118/88 and 122/98.  Various private treatment records dated from 1998 to 2012 and VA treatment records dated from 2012 to 2017 recorded that the Veteran is on medications to control his hypertension, such as lisinopril and amlodipine.  Finally, an August 2018 letter from the Veteran’s attorney included the submission of a November 2016 medical treatise article on herbicide exposure and hypertension risk for Army Veterans from the American College of Occupational and Environmental Medicine.

Post-service, the National Academy of Science’s (NAS) Institute of Medicine’s Veterans and Agent Orange: Update 2010, concluded that there was “limited or suggestive” evidence of an association between herbicide exposure and hypertension.  See Nat’l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2010 (2011) at 694; see also Notice, 77 Fed. Reg. 47924-47928 (2012).  Moreover, more recently, publication of Veterans and Agent Orange: Update 11 (2018) by the NAS found “sufficient evidence” of an association between hypertension and exposure to herbicide agents such as Agent Orange.  This 2018 publication upgraded hypertension’s previous classification in 2010 from the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association.  According to the NAS in 2018, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure.  

3. After completion of step 1, the AOJ should schedule the Veteran for the appropriate VA examination and opinion to determine the etiology of the following current disabilities: thoracic myelopathy as a residual of a meningioma tumor and peripheral neuropathy of the upper and lower extremities.  Access to the electronic claims file must be made available to the VA examiner for review.  The examination should include any diagnostic testing or evaluation deemed necessary, including X-rays.  The Veteran must be interviewed.  An explanation for all opinions expressed must be provided.	

THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: 

a. For the Veteran’s current thoracic myelopathy as a residual of a meningioma tumor and peripheral neuropathy of the upper and lower extremities, is it at least as likely as not (i.e., 50 percent or more probable) that any of these disorders are causally related to his presumed exposure to herbicide agents in Vietnam, to include Agent Orange?  In answering this particular question, the VA examiner is advised that the mere fact that presumptive service connection has not been established by VA for these disabilities is not dispositive of the issue of nexus.  Consideration must still be given to the Veteran’s presumed herbicide exposure in Vietnam and the subsequent development of myelopathy as a residual of a meningioma tumor and peripheral neuropathy of the upper and lower extremities.

b.  Is it at least as likely as not (i.e., 50 percent or more probable) that any current peripheral neuropathy of the upper and lower extremities is caused by, proximately due to, or the result of his service-connected type II diabetes mellitus disability?

c.  Is it at least as likely as not (i.e., 50 percent or more probable) that that any current peripheral neuropathy of the upper and lower extremities is aggravated by or worsened by his service-connected type II diabetes mellitus disability?

Aggravation is defined as a worsening beyond the natural progression of the disability.  Please address both the causation and aggravation elements of the Veteran’s secondary service connection claim.  Separate findings and rationale should be provided for both causation and aggravation.

d.  In answering the questions above, the VA examiner is advised of the following evidence:

For the thoracic myelopathy as a residual of a meningioma tumor:

STRs dated from 1967 to 1970 are negative for any complaint, treatment, or diagnosis of a meningioma or condition of the spine.  But the Veteran is presumed to have been exposed to herbicide agents during his military service in Vietnam.  At his March 1970 STR report of medical history at separation, the Veteran denied a history of back trouble or shoulder problems or swollen or painful joints.  His March 1970 STR separation examination was normal for the spine and upper extremities.    

Post-service, police officer examinations dated in May 1997 and May 1998 revealed a normal spine.  Various private treatment records dated from 1998 to 2000 diagnosed the Veteran with hypertension, GERD, hyper cholesterol, and hyperthyroidism, but did not mention the spine.  A private treatment record dated in October 2001 indicated the Veteran pulled his back cutting weeds.  He exhibited pain over the left shoulder and mild numbness of the left finger after lifting.  The diagnosis was muscle strain.  

Post-service, private treatment records beginning in March 2012 documented a two-week history of progressive myelopathy and lower extremity weakness.  The Veteran fell down multiple times and could not walk.  He was in a wheelchair.  A March 2012 MRI of the cervicothoracic region showed a T2 intradural extramedullary mass lesion homogenously enhancing with significant cord compression posteriorly and spinal canal stenosis.  According to a March 2012 operative report, the Veteran underwent a two-level thoracic laminectomy for resection of an intradural extramedullary tumor.  In this operative report the Veteran reported a week and a half history of electric shock sensations radiating into his mid-back all the way down to his feet and legs with onset of tingling dysesthesias in both lower extremities.  An April 2012 surgical pathology report / biopsy diagnosed a meningioma / spinal tumor at the T-2 level.  Subsequent private and VA treatment records assessed residual, persistent thoracic myelopathy from the meningioma (resulting from spinal cord compression), as well as peripheral neuropathy type symptoms in the upper and lower extremities. 

Post-service, June 2012 medical treatise evidence from the Mayfield Clinic noted that meningiomas grow slowly.  It may be years before they cause symptoms.

Post-service, a December 2014 Central Virginia Neurosurgery report listed the Veteran’s reported history of mid-thoracic back pain dating back to his military service.  He reported possible toxin exposure during service.  The private neurosurgeon opined that to this neurosurgeon’s knowledge, he is “unsure as to any specific causation for meningioma, but cannot rule it out.”  The assessment was thoracic spinal meningioma, with the Veteran doing well post-surgery. 

Post-service, in an August 2018 attorney letter and during the Veteran’s August 2018 hearing testimony, the Veteran stated he first noticed a low-level numbness in his shoulder in the 1970s which ended up being next to the location of a later upper-thoracic meningioma.  The discomfort was intermittent over the years.  He believed the presence of this meningioma pushing against and altering the shape of his spine resulted in his myelopathy and bilateral upper and lower neuropathies.  He also believes that this thoracic meningioma is the result of exposure to Agent Orange during his active duty service in Vietnam.  

For the peripheral neuropathy of the upper and lower extremities:

STRs dated from 1967 to 1970 are negative for any complaint, treatment, or diagnosis of a meningioma or condition of the spine or upper or lower extremity disorder or neuropathy.  But the Veteran is presumed to have been exposed to herbicide agents during his military service in Vietnam.  At his March 1970 STR report of medical history at separation, the Veteran denied a history of swollen or painful joints or shoulder problems or back trouble or foot trouble or neuritis.  His March 1970 STR separation examination was normal for the spine and upper and lower extremities and for his neurological system.

Post-service, police officer examinations dated in May 1997 and May 1998 revealed a normal spine, normal feet, normal lower extremities, and normal upper extremities.  However, the May 1997 police examiner did observe knee pain.  A May 1998 private new patient report commented that in the past month or two, the Veteran was having problems with peripheral edema.  He was provided medications to treat this.  His extremities showed 1+ pretibial edema.  He was advised to cut back on alcohol, and to exercise for his obesity.  A May 1998 U.S. Department of Commerce physical examination observed swelling in the legs - losing weight and exercise should help.  Private treatment records in 1998 endorsed pedal edema and some lower extremity complaints.  Diminished reflexes were shown.  A May 1999 U.S. Department of Commerce physical examination demonstrated heel spurs / plantar fasciitis. 

Post-service, a private treatment record dated in October 2001 indicated the Veteran pulled his back cutting weeds.  He exhibited pain over the left shoulder and mild numbness of the left finger after lifting.  The diagnosis was muscle strain.  

Post-service, private treatment records beginning in March 2012 documented a two-week history of progressive myelopathy and lower extremity weakness.  The Veteran fell down multiple times and could not walk.  He was in a wheelchair.  A March 2012 MRI of the cervicothoracic region showed a T2 intradural extramedullary mass lesion homogenously enhancing with significant cord compression posteriorly and spinal canal stenosis.  According to a March 2012 operative report, the Veteran underwent a two-level thoracic laminectomy for resection of an intradural extramedullary tumor.  In this operative report the Veteran reported a week and a half history of electric shock sensations radiating into his mid-back all the way down to his feet and legs with onset of tingling dysesthesias in both lower extremities.  An April 2012 surgical pathology report / biopsy showed a meningioma / spinal tumor at the T-2 level.  Subsequent private and VA treatment records assessed residual, persistent thoracic myelopathy from the meningioma (resulting from spinal cord compression), as well as peripheral neuropathy type symptoms in the upper and lower extremities. 

Post-service, May 2012 and June 2012 Central Virginia Neurosurgery letters discussed the Veteran’s reported persistent tingling in the tips of his fingers, burning in the feet, low back discomfort with numbness from the waist down, and partial numbness in the legs.  He states he has some persistent dysesthesias in his feet and legs, but his strength is improving after his March 2012 thoracic laminectomy.  The neurosurgeon concluded that in the upper extremities the Veteran has symptoms of median neuropathy associated with use of his walker “I think.”  Also, he “could possibly” have a diagnosis of peripheral neuropathy, a diagnosis which was discovered on review of Internet symptoms.  The neurosurgeon added “I think” primarily he has residual myelopathy from the spinal cord compression and evidenced by the gliotic change within the thoracic cord.

Post-service, VA treatment records diagnosed peripheral neuropathy for which the Veteran takes gabapentin, which is improving his symptoms.  By 2014 VA treatment records observed the Veteran still had gait disturbance, but his lower extremity symptoms appear “stable.”  VA treatment records dated from 2015 to 2017 documented the Veteran uses a walker full-time due to lower extremity weakness and numbness. 

Post-service, June 2012 medical treatise evidence from the Mayfield Clinic noted that meningiomas grow slowly.  It may be years before they cause symptoms.

Post-service, in June 2014 the RO received medical treatise evidence describing how exposure to toxins is one of the potential causes of peripheral neuropathy.

Post-service, a December 2014 Central Virginia Neurosurgery report listed the Veteran’s reported history of mid-thoracic back pain dating back to his military service.  He reported possible toxin exposure during service.  The private neurosurgeon opined that to the neurosurgeon’s knowledge, he is “unsure as to any specific causation for meningioma, but cannot rule it out.”  The assessment was thoracic spinal meningioma, with the Veteran doing well post-surgery. 

Post-service, in an August 2018 attorney letter and during the Veteran’s August 2018 hearing testimony, the Veteran stated he first noticed a low-level numbness in his shoulder in the 1970s which ended up being next to the location of a later upper-thoracic meningioma.  The discomfort was intermittent over the years.  He believed the presence of this meningioma pushing against and altering the shape of his spine resulted in his myelopathy and bilateral upper and lower neuropathies.  He also believes that this thoracic meningioma and upper and lower extremity peripheral neuropathy is the result of exposure to Agent Orange during his active duty service in Vietnam.  

4. After completion of steps 1-3, if and only if the AOJ continues to determine that the Veteran does not meet the percentage standards under 38 C.F.R. § 4.16(a) for a TDIU prior to May 27, 2015, the AOJ should submit the issue of entitlement to an extraschedular TDIU prior to May 27, 2015 under 38 C.F.R. § 4.16(b) to the Director of Compensation Service.  

An extraschedular evaluation under 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities.  See VAOPGCPREC 6-96.  All of the Veteran’s service-connected disabilities should be considered.  Also, the Veteran’s employment history, educational and vocational attainment, and all other factors having a bearing on his employability (or lack thereof) should be considered under 38 C.F.R. § 4.16(b).

5. After completion of steps 1-4, the AOJ should consider all of the evidence of record and readjudicate the various service connection issues on appeal and the issue of entitlement to an earlier effective date for the award of a TDIU prior to May 27, 2015.  If the benefit sought is not granted, the AOJ should issue a SSOC and allow the Veteran and his attorney an opportunity to respond.

(***Since the Board in the present decision has granted secondary service connection for depression and alcohol abuse and an earlier effective date of June 29, 2012 for the award of service connection for PTSD with depression and alcohol abuse, the AOJ’s assignment of 

 

disability ratings and effective dates for these awards will impact the adjudication of the TDIU claim***). 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P.S. Rubin, Counsel

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.