Citation Nr: 20002831
Decision Date: 01/14/20	Archive Date: 01/13/20

DOCKET NO. 16-11 436
DATE: January 14, 2020

ORDER

New and material evidence has been received to reopen a service connection claim for peripheral neuropathy.

Service connection for peripheral neuropathy of the bilateral upper and lower extremities, secondary to diabetes, is granted.

The reduction in the disability rating for service-connected hepatitis B and C from 40 percent to noncompensable, effective November 1, 2015, is void; restoration of the 40 percent rating for hepatitis B and C is granted.

The reduction in the disability rating for service-connected ischemic heart disease (IHD) from 60 percent to 10 percent, effective November 1, 2015, is void; restoration of the 60 percent rating for IHD is granted. 

A disability rating in excess of 60 percent for IHD is denied.

Beginning August 14, 2012, a 100 percent disability rating for posttraumatic stress disorder (PTSD) is granted.

Prior to August 14, 2012, a disability rating in excess of 50 percent for PTSD is denied.

Beginning August 14, 2012, the appeal of the issue of entitlement to a total disability rating based on individual unemployability (TDIU), having been rendered moot, is dismissed.

For the rating period prior to August 14, 2012, entitlement to a TDIU is denied.

REMANDED

Entitlement to service connection for a sleep disorder is remanded.

FINDINGS OF FACT

1.  In an unappealed January 1997 rating decision, the RO denied the Veteran’s service connection claim for peripheral neuropathy.

2.  The evidence received since the prior final January 1997 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim for service connection for peripheral neuropathy.

3.  Resolving any reasonable doubt in the Veteran’s favor, the Veteran’s current peripheral neuropathy of the bilateral upper and lower extremities is etiologically related to his service-connected diabetes.

4.  By an August 2015 rating decision, the RO reduced the assigned disability rating for the Veteran’s service-connected hepatitis B and C from 40 percent to noncompensable, effective November 1, 2015.

5.  Reduction of the rating for hepatitis B and C from 40 percent to noncompensable resulted in a reduction of the Veteran’s combined disability compensation benefits and compensation payments.

6.  By issuing a rating decision that does not set forth all material facts and reasons for the reduction, VA failed to provide the Veteran sufficient notice of the reduction for the rating for hepatitis B and C.

7.  By an August 2015 rating decision, the RO reduced the assigned disability rating for the Veteran’s service-connected IHD from 60 percent to 10 percent, effective November 1, 2015.

8. Reduction of the rating for IHD from 60 percent to 10 percent resulted in a reduction of the Veteran’s combined disability compensation benefits and compensation payments.

9. By issuing a rating decision that does not set forth all material facts and reasons for the reduction, VA failed to provide the Veteran sufficient notice of the reduction for the rating for IHD.

10.  For the entire rating period on appeal, the Veteran’s IHD did not result in a workload of 3 metabolic equivalents (METs) or less resulting in dyspnea, fatigue, angina, dizziness or syncope; nor was there evidence of chronic congestive heart failure; or, left ventricular ejection fraction of less than 30 percent.

11.  Resolving any reasonable doubt in the Veteran’s favor, beginning August 14, 2012, the Veteran’s service-connected PTSD was primarily productive of total occupational and social impairment.

12.  For the period on appeal prior to August 14, 2012, the Veteran’s service-connected PTSD was primarily productive of occupational and social impairment with reduced reliability and productivity.

13.  As a 100 percent (“total”) schedular rating for the Veteran’s service-connected PTSD will be awarded for the rating period on appeal from August 14, 2012 based on a finding of total occupational and social impairment, the issue of entitlement to a TDIU from August 14, 2012 is rendered moot.

14.  For the rating period on appeal prior to August 14, 2012, entitlement to a TDIU is denied.

CONCLUSIONS OF LAW

1. The January 1997 rating decision denying service connection for peripheral neuropathy is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018).

2.  New and material evidence has been received to reopen service connection for peripheral neuropathy.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018).

3.  Resolving any reasonable doubt in the Veteran’s favor, the criteria to establish service connection for peripheral neuropathy of the bilateral upper and lower extremities, secondary to diabetes, secondary to diabetes, have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018).

4.  The August 2015 rating decision, which reduced the Veteran’s rating for his service-connected hepatitis B and C from 40 percent to noncompensable under Diagnostic Code 7354-7345, is void ab initio; the criteria for restoration of the 40 percent rating for this disability are met from November 1, 2015.  38 C.F.R. §§ 3.105, 3.344 (2018).

5.  The August 2015 rating decision, which reduced the Veteran’s rating for his service-connected IHD from 60 percent to 10 percent under Diagnostic Code 7005, is void ab initio; the criteria for restoration of the 60 percent rating for this disability are met from November 1, 2015.  38 C.F.R. §§ 3.105, 3.344 (2018).

6.  The criteria for a rating higher than 60 percent for IHD are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code (DC) 7005 (2018).

7.  Resolving any reasonable doubt in the Veteran’s favor, beginning August 14, 2012, the criteria for a disability rating of 100 percent for PTSD are approximated.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130 Diagnostic Code (DC) 9411 (2018).

8.  For the period on appeal prior to August 14, 2012, the criteria for a disability rating higher than 50 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130 Diagnostic Code (DC) 9411 (2018).

9.  Beginning August 14, 2012, entitlement to a TDIU is rendered moot.  38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 4.14, 4.16 (2018).

10.  For the period on appeal prior to August 14, 2012, the criteria for entitlement to a TDIU have not been met.  38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 4.14, 4.16 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1969 to September 1973, including service in the Republic of Vietnam.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated March 2014 and August 2015 of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

In June 2019, the Veteran testified during a video-conference hearing before the undersigned Veterans Law Judge (VLJ).  A copy of the hearing transcript is of record and has been reviewed.

In February 2019, the Veteran was granted entitlement to a TDIU, effective November 1, 2015, in a rating decision issued pursuant to the Appeals Modernization Act, which is a separate appeal stream than the instant appeal.  See Decision Review Officer Decision dated February 27, 2019.  However, as the Veteran, in the instant appeal, has raised the issue of the TDIU effective date, which is part and parcel with the issue of an increased rating, Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board will adjudicate the issue of entitlement to a TDIU for the rating period prior to the effective date assigned.

Following certification of the claims on appeal to the Board in February and March 2019, additional treatment records and a VA examination report relevant to the issue of service connection for peripheral neuropathy were associated with the Veteran’s claims file.  Although the evidence is VA-generated and there is no signed waiver of RO review by the Veteran or his representative, the Board finds that a remand for initial review of this evidence by the RO is not warranted as the Board has determined that the benefits to which the evidence relates may be fully allowed on appeal without such referral.  38 C.F.R. § 20.1304(c) (2018).

Additionally, subsequent to the February 2019 Supplemental Statement of the Case, the Veteran submitted a private psychiatric evaluation and a private heart evaluation in support of his claims for increased ratings for PTSD and IHD.  Thus, the RO has not had the opportunity to consider the evaluations in adjudicating these claims.  However, because the private evaluations were submitted after the filing of the July 2018 substantive appeal (VA Form 9) for the PTSD and IHD rating claims, initial RO consideration of the evidence is automatically waived unless the Veteran or his representative requests in writing that the RO initially review such evidence.  38 U.S.C. § 7105(e) (2012).  No such request having been received, the Board may consider the additional evidence on appeal.

Regarding the characterization of the issues on appeal, the Board notes that the propriety of a rating reduction is a separate issue from a claim for an increased evaluation.  See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (holding that the Board “incorrectly phrased the issue in terms of whether appellant was entitled to an increased rating; in fact and in law, the issue presented to the BVA, and to this Court, is not whether the veteran was entitled to an increase but whether the reduction of appellant’s rating from 100 to 10 percent was proper”); see also Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) (“This is a rating reduction case, not a rating increase case.”).  In this case, the reduction of the rating for hepatitis stemmed from a January 2014 VA periodic review examination; the reduction for IHD stemmed from a VA examination conducted in connection with the Veteran’s May 2013 claim for an increased rating.  The record does not reflect that the Veteran has asserted during the period on appeal that his hepatitis symptoms are worse, and he stated during the June 2019 Board hearing that his symptoms have “been about the same.”  See Board hearing transcript dated June 25, 2019 (“Hearing Transcript”) at pg. 7.  Conversely, in May 2013, the Veteran sought an increased rating for IHD and on appeal he also seeks restoration of the 60 percent pre-reduction rating for IHD.  See Hearing Transcript at pg. 8.  Under these circumstances, the hepatitis issue is phrased as an appeal of the reduction and the IHD issue is phrased to include an appeal of the reduction as well as a claim for an increased rating.  See Percy v. Shinseki, 23 Vet. App. (2009) (by treating an issue as part of an appeal, VA waived any objections to the adequacy of the appeal with respect to that issue).

Preliminary Matter

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).

New and Material Evidence – Peripheral Neuropathy

Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a).  The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302.

Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered.  38 U.S.C. §§ 7104, 7105.  Under 38 U.S.C. § 5108, however, “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.”

“The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find.”  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  The Board is neither required nor permitted to analyze the merits of a previously-disallowed claim if new and material evidence is not presented or secured.  Butler v. Brown, 9 Vet. App. 167, 171 (1996).  When determining whether a claim should be reopened, the credibility of the newly- received evidence is presumed.  See Justus v. Principi, 3 Vet. App. 510 (1992).

“New” evidence is defined as existing evidence not previously submitted to agency decision-makers.  “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.”  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

In the instant case, in a January 1997 rating decision, the RO denied the Veteran’s original claim for service connection for peripheral neuropathy.  See Rating Decision dated January 27, 1997.  The RO concluded that there was no basis in the evidence to establish a relationship between the Veteran’s peripheral neuropathy and service.  The Veteran did not appeal the January 1997 rating decision, nor was new and material evidence received within a year of issuance of the January 1997 notification letter; the rating decision therefore became final.  38 C.F.R. § 20.1103.

In May 2013, the Veteran sought to reopen her service connection claim for peripheral neuropathy.  In a January 2014 rating decision, the RO declined to reopen the service connection claim, concluding that the Veteran had not submitted new and material evidence.  The Veteran submitted a timely NOD and timely perfected an appeal to the Board, and the instant appeal ensued.

Based on the procedural history of the case, the last final decision pertinent to the Veteran’s claims of service connection for peripheral neuropathy is the January 1997 rating decision.

The evidence of record at the time of the January 1997 rating decision consisted of the Veteran’s October 1996 claim for compensation, service treatment records (STRs), service personnel records, and private and VA post-service treatment records.  Subsequent to the January 1997 rating decision, evidence added to the claims file includes the Veteran’s May 2013 petition to reopen the claim, statements in support of his claim, private and VA post-service treatment records, and VA examination reports dated May 2009, May 2010, August 2012, January 2014, and May 2019.  The additional evidence received since the January 1997 prior final denial, particularly a May 2019 VA diabetic neuropathy examination report and a May 2019 VA diabetes examination report, speaks to the question of a nexus and is therefore new and material.  Accordingly, new and material evidence has been received, and to this extent only, the claim of service connection for peripheral neuropathy is reopened.

Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability.  38 C.F.R. § 3.310(a) (2018).  Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  See 38 C.F.R. § 3.310(b) (2018); Allen v. Brown, 8 Vet. App. 374 (1995).

If a veteran was exposed to an herbicide agent during active service in the Republic of Vietnam during the Vietnam Era, which was previously conceded, presumptive service connection is warranted for several disabilities, including early-onset peripheral neuropathy within one year of service or last exposure to an herbicide agent.  38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309.  Here, the Veteran’s treatment records reflect that the Veteran’s peripheral neuropathy did not onset until many years after his separation from service.  Therefore, the presumption is not for application.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469.  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Lay evidence may establish a diagnosis of a simple medical disability, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau, 492 F.3d 1372, 1377.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Peripheral Neuropathy

The Veteran asserts that his peripheral neuropathy of the bilateral upper and lower extremities is secondary to his service-connected diabetes mellitus, type II.  See Veteran’s Supplemental Claim for Compensation received May 10, 2013.

As an initial matter, the Veteran has a current diagnosis of bilateral upper and lower extremity peripheral neuropathy.  See VA neurology consultation notes December 7, 2018; VA diabetic neuropathy examination report dated July 30, 2019 at pgs. 8-9

During a February 2013 VA outpatient visit, the Veteran underwent a comprehensive examination during which he complained of neuropathy of the hands and feet.  A monofilament examination was abnormal, revealing diminished sensation.  The Veteran’s VA physician diagnosed “peripheral neuropathy, likely diabetic.”  See VA treatment record dated February 4, 2013.

The Veteran underwent a VA examination in January 2014 during which the examiner indicated that the Veteran had symptoms of diabetic peripheral neuropathy, specifically mild paresthesias and/or dysesthesias and mild numbness of the bilateral upper and lower extremities, but then concluded that the Veteran was negative for neuropathy of the bilateral upper and lower extremities.  The examiner opined that it was less likely than not that the Veteran’s peripheral neuropathy was proximately due to the service-connected diabetes mellitus because the VA doctor who diagnosed “peripheral neuropathy, probably diabetic” in February 2013 only saw the Veteran once, and concluded that his peripheral neuropathy was more likely due to injuries to the Veteran’s spine in 2000 and 2004.

During a December 2018 VA neurological consultation, the Veteran was diagnosed with diabetic polyneuropathy by the chief neurologist at the Shreveport VA Medical Center.  See VA neurology consultation notes December 7, 2018.

The Veteran underwent VA neuropathy and diabetes examinations in May 2019.  Notably, the examiner determined that the Veteran has diabetic peripheral neuropathy of the upper and lower extremities, bilaterally.  See VA diabetic neuropathy examination reported dated July 30, 2019 at pgs. 8-9; VA diabetes mellitus examination report dated July 30, 2019 pg. 2.

The Board acknowledges that there are positive and negative opinions as to whether the Veteran has been diagnosed with diabetic peripheral neuropathy, and whether it is related to the Veteran’s service-connected diabetes mellitus, type II.  Notably, the diagnoses of diabetic peripheral neuropathy and favorable medical opinions authored by Veteran’s VA physician in February 2013, the chief neurologist at the Shreveport VA Medical Center (VAMC) in December 2018, and the May 2019 VA examiner were rendered by board-certified physicians who were familiar with the Veteran’s medical history and symptoms through treatment or review of the claims file, and are supported by clear conclusions, supporting data, and reasoned medical explanations.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).  Accordingly, the Board finds the February 2013, December 2018, and May 2019 diagnoses and medical opinions highly probative.  In contrast, the January 2014 examiner failed to explain why she assigned weight to the Veteran’s spinal injuries to the exclusion of his lay statements or his VA physician’s February 2013 diagnosis.  Therefore, the Board finds that the January 2014 VA opinion is of little probative value.  Prejean, supra.

Resolving any reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise with respect to whether there is a current diagnosis of peripheral neuropathy of the bilateral upper and lower extremities that is proximately due to the Veteran’s service-connected diabetes mellitus, type II.  As such, service connection on a secondary basis is warranted.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310.

Rating Reduction

Applicable Laws and Regulations

The Veteran asserts that the rating reduction from 40 percent to noncompensable for his hepatitis B and C disability, and the rating reduction from 60 percent to 10 percent for his IHD, both effective as of November 1, 2015, were not proper.

In a rating reduction, VA must comply with the notice procedures of 38 C.F.R. § 3.105(e) (2018).  The provisions of 38 C.F.R. § 3.105(e) allow for a rating reduction when warranted by the evidence, but only after following certain procedural guidelines.  The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction.  The Veteran must then be given 60 days to submit additional evidence and 30 days to request a predetermination hearing.  Then, a rating action will be taken to effectuate the reduction.  38 C.F.R. § 3.105(e), (i) (2018).  Notice is warranted only where there is a reduction in compensation payments currently being made.  Tatum v. Shinseki, 24 Vet. App. 139 (2010).

Under the provisions of 38 C.F.R. § 3.344(c), when a disability rating has been in effect for less than five years, a reexamination that shows improvement in a disability warrants a reduction in disability benefits.  Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations.  In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.  See Brown, 5 Vet. App. at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. § 3.344(c).

The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination.  See Brown v. Brown, 5 Vet. App. 413, 417-18 (1993).  Where doubt remains, the rating agency will continue the rating in effect, and consider scheduling reexamination 18, 24, or 30 months later.  38 C.F.R. § 3.344(b).

Where a rating reduction was made without observance of law, the reduction must be vacated, and the prior rating restored.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Here, the rating reductions reduced the Veteran’s monthly VA benefit payment.  See VA letter dated March 28, 2014.  Therefore, the RO was required to provide the Veteran with proper notice of the reduction pursuant to 38 C.F.R. § 3.105(e).  The reductions were proposed in a March 2014 rating decision, accompanied by the March 28, 2014 notice letter, which indicated that the Veteran had 30 days to request a hearing and 60 days to submit additional evidence.  The effective date of the reductions, November 1, 2015, was set forth in an August 2015 rating decision.  Thus, the timing element of the notice requirement was satisfied by providing the Veteran with a 30-day period to request a hearing and allowing a 60-day period to expire before assigning the new effective date for the ratings.

Nevertheless, neither the March 2014 rating action nor the March 2014 notice letter set forth all material facts and reasons for the reductions.  The notice letter merely references the January 2014 VA hepatitis and heart examinations by date, while the rating action referenced a “VA examination” and “medical evidence” that indicated sustained improvement in each disability, and then discussed the respective rating criteria, with no further explanation.  Critically, neither instrument identifies specific evidence demonstrating sustained improvement in his hepatitis and IHD, thereby falling well short of VA’s mandate under 38 C.F.R. § 3.105(e) that the Veteran receive notice that includes all material facts and reasons for a reduction.  

As the rating decision did not properly apply the provisions of 38 C.F.R. § 3.105 (e), the reductions of the Veteran’s service-connected hepatitis and IHD are void.  The appropriate remedy in this case is a restoration of the 40 percent rating for hepatitis and the 60 percent for IHD.  Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (where VA reduces the appellant's rating without observing applicable laws and regulations the rating is void ab initio and the Court will set aside the decision).

Increased Rating Claims

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.

Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the low rating will be assigned.  38 C.F.R. § 4.7.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes (DC or DCs), is to be avoided when rating a veteran’s service-connected disabilities.  38 C.F.R. § 4.14.  It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several DC; however, the critical element in doing so is that none of the symptomatology is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

The assignment of a particular DC is “completely dependent on the facts of a particular case.”  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One DC may be more appropriate than another based on such factors as an individual’s relevant medical history, the DC, and the demonstrated symptomatology.  Any change in a DC by VA must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In evaluating the probative value of a medical opinion, the Board will assess whether (1) the medical opinion is based on sufficient facts and data, (2) the medical opinion is the product of reliable principles and methods, and (3) the medical expert has applied the principles and methods reliably to the case.  Nieves-Rodriguez, 22 Vet. App. at 302.  Specifically, the Board will determine whether the medical expert was aware of the critical medical facts in the Veteran’s medical history and whether the expert provided the sort of factually accurate, fully articulated, and sound reasoning for the opinion that allows the Board to assess whether the expert applied valid medical analysis to the facts of the particular case.  Id. at 303-05.

As with all evidence, it is the responsibility of the Board to weigh conflicting medical evidence to reach a conclusion as to the ultimate grant of benefits.  Nieves-Rodriguez, 22 Vet. App. at 300; Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran.  Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011).  In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Increased Rating for IHD

For diseases of the heart, the rating criteria provide that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 millimeters per kilogram of body weight per minute.  When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used to rate the Veteran.  38 C.F.R. § 4.104.

The current 60 percent evaluation contemplates a workload of greater than three METs, but not greater than five METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope.  Also, it is consistent with more than one episode of acute congestive heart failure in the past year; or, left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  A higher evaluation of 100 percent may be assigned if there is chronic congestive heart failure, or; workload of 3 METs or fewer results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent.  38 C.F.R. § 4.104, Diagnostic Code 7005 (2018).

Analysis

The Veteran seeks a higher rating for his service-connected IHD, which is currently rated as 60 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7005 based on VA examination findings of METs of 3-5 and left ejection fraction of 50 percent.  See Rating Decision dated July 22, 2011 at pg. 2.

For the reasons set forth below, the Board finds that a disability rating in excess of 60 percent is not warranted for the Veteran’s IHD.  

Turning to the evidence, an August 2012 VA outpatient echocardiogram indicated left ventricular ejection fraction (LVEF) of 50-55 percent.

In August 2012, the Veteran underwent a VA heart examination.  The diagnosis was atherosclerotic cardiovascular heart disease, which qualified as IHD.  The examiner noted that continuous medication was required in treating the Veteran’s IHD, specifically aspirin 81 mg daily.   The Veteran was negative for myocardial infarction, congestive heart failure, arrhythmia, heart valve conditions, infectious heart conditions, and pericardial adhesions.  The Veteran denied surgical procedures and hospitalizations arising from IHD.  On examination, the Veteran’s heart rate was 80 with regular rhythm, with point of maximal impact at the fifth intercostal space.  His blood pressure was 130/70.  His heart and lung sounds were normal, peripheral pulses were normal, and he was negative for jugular-venous distension, peripheral edema of the lower extremities.  There was no evidence of cardiac hypertrophy.  

Findings of a myocardial rest and stress test conducted in September 2012 in association with the VA examination were that the left ventricular chamber size appeared within normal limits, there was no significant change in the chamber size between stress and rest/post-rest images, and there was no evidence of significant ischemia or scarring.  Gated images demonstrated a calculated left ventricular ejection fraction (LVEF) of 66 percent with no significant wall motion abnormalities.  The impression was that the test results were normal.  The examination report does not indicate that exercise or interview-based MET testing was done.

The VA examiner concluded that the Veteran’s heart condition did not impact his ability to work.

April 2013 VA treatment notes reflect that the Veteran experienced chest pains twice over a weekend with pain in his right arm.  An electrocardiogram (EKG) showed normal sinus rhythm but revealed right bundle branch block.

In May 2013, the Veteran went to a VA medical center emergency room complaining of worsening chest pains over many weeks, with pain radiating into his left arm, nausea, and dyspnea, upon admission for evaluation.  The admitting diagnosis was unstable angina.  After admission, the Veteran’s chest pain and dyspnea subsided, and he denied syncope.  Impression was chest pain consistent with acute coronary syndrome with contributing factors of poor control of the Veteran’s diabetes mellitus, type II, elevated blood pressure, and methamphetamine abuse.  A cardiac catheterization revealed coronary artery disease (CAD) with mild luminal irregularities of the right coronary artery.

In July 2013, the Veteran experienced shortness of breath and increasing fatigue while walking his dog for one-half mile.  He reported swelling in his feet and ankles.  The impression was CAD.  It was believed that his symptoms were not heart-related as his ejection fraction was 55 percent with essentially normal coronary anatomy except for CAD with mild luminal irregularities of the right coronary artery as revealed during the May 2013 catheterization.

In January 2014, the Veteran underwent a VA heart examination.  The examiner noted that the Veteran “denies experiencing symptoms with any level of physical activity.”  Notably, no diagnostic testing, e.g., EKG, chest x-ray, echocardiogram was conducted for the examination, with the examiner instead relying on diagnostic data associated with the treatment records in 2012.  While the VA examiner indicated that interview-based METs testing was done, no METs results were noted in the examination report.  The examiner concluded that the Veteran had a normal heart examination yet acknowledged that the Veteran’s treatment records reflect a diagnosis of non-obstructed CAD.  The VA examiner’s conclusion that the Veteran was asymptomatic for heart disease and had had normal heart examinations is suggestive that the examiner’s review of the claims file was cursory at best, which renders the opinion of little or no probative value.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  The examiner’s failure to recognize that CAD is a type of IHD and her failure to record METs data further lowers the probative value of the examination report.

During a February 2014 VA outpatient visit, it was noted that the Veteran did not have congestive heart failure.  

In June 2014 the Veteran was seen for possible pneumonia.  He endorsed fatigue and dizziness.  On examination regular heart rate and rhythm and heart sounds were noted.  He was negative for cyanosis, clubbing, and edema. 

A September 2014 VA outpatient treatment record reflects that the Veteran had regular heart rate and rhythm.  Normal heart sounds were noted, and he was negative for cyanosis, clubbing, and edema. 

VA treatment records dated December 2014 reflect an EKG indicating sinus tachycardia, right bundle branch block, left axis deviation.  There was no significant arrhythmia.

During a January 2015 VA outpatient visit, the Veteran underwent an echocardiogram, which indicated that the left ventricular size and wall thickness were normal, there was normal global left ventricular contractility, and the overall left ventricular systolic function was normal, with an ejection fraction from 60 to 65 percent.  It was noted that the diastolic filling pattern was normal for the Veteran’s age.

During a March 2015 VA cardiology consultation, it was noted that the etiology of the Veteran’s sinus tachycardia was unknown.  The Veteran denied chest pain, and he was negative for ischemia and his LVEF was noted as “normal.”  The Veteran was negative for shortness of breath on exertion, rapid heartbeat, and pounding heart.  The Veteran’s hypertension/heart medication was changed from Diltiazem to Metoprolol.

In June 2015, the Veteran’s hypertension was stable, and he was back on Diltiazem at a lower dosage. 

A July 2016 VA outpatient record shows that the Veteran had regular heart rate and rhythm, and normal heart sounds.  He was negative for cyanosis, clubbing, and edema. 

In December 2016, the Veteran again had regular heart rate and rhythm, and normal heart sounds.  He was negative for cyanosis, clubbing, and edema. 

During a February 2017 cataract surgery pre-operative review, the Veteran was noted to have hypertension, CAD with no recent chest pains reported, and his METs were noted as greater than four.

In May 2018, the Veteran was negative for chest pain or dyspnea on exertion and palpitations.  Although lower extremities edema was noted, he was negative for pedal edema.

VA outpatient treatment notes dated January 2019 reflect that the Veteran has CAD but was negative for congestive heart failure and dyspnea.

An April 2019 VA IHD disabilities questionnaire (DBQ) completed by private physician M.R., MD notes that the Veteran’s treatment records reflect that he was diagnosed in 1988 with Atherosclerotic cardiovascular disease, CAD, and stable angina.  Doctor M.R. said the Veteran has ongoing complaints of chest pain and he is unable to exercise due to orthopedic problems.  Doctor M.R. concluded that the Veteran has IHD, first diagnosed in October 2008, and noted that at times he has angina, but more often has anginal equivalents of dyspnea on exertion and fatigue.  Doctor M.R. said the Veteran has right bundle branch block as well as other EKG changes that are likely due to atherosclerosis.  Doctor M.R. observed that the Veteran was taking continuous medication required for control of his heart condition, i.e., aspirin, beta blocker, ACE inhibitor, statin medication for lipids and nitrates, and that he experiences frequent low blood pressure with lightheadedness due to these medications as well as hypertension and hyperlipidemia.  Doctor M.R. concluded that the Veteran was negative for congestive heart failure, chronic and acute; cardiac arrhythmia; and infectious cardiac conditions.

Doctor M.R. noted that interview-based METs testing in October 2008 revealed METs in the 3-5 range or greater, and that the Veteran underwent a cardiac catheterization in May 2013.  Doctor M.R. concluded that prior interview-based METs testing most accurately reflected the Veteran’s then-current cardiac functional level, noting that the METs of 4 is based on interview and clinical judgment of cardiologists who directly cared for the Veteran.  Doctor M.R. noted that the METs level was due solely to the Veteran’s heart condition.

The April 2019 DBQ prepared by Doctor M.R. is competent, credible and probative: It was authored by a licensed physician who reviewed the Veteran’s claims file and was therefore familiar with the Veteran’s symptoms, diagnoses, and treatment of his heart disorder; the evaluation was based on a review of the evidence of record as well as lay statements of the Veteran.  The opinion is consistent with the medical evidence of record and contains clear conclusions with supporting data connected by a reasoned medical explanation.  See Nieves-Rodriguez, 22 Vet. App. At 301-02.  Notably, there are no examination reports or other competent medical evidence of record that weighs against the opinion of Doctor M.R.  Accordingly, the Board finds the April 2019 DBQ is highly probative, competent and persuasive medical evidence in this case.

During the June 2019 Board hearing, when asked by the undersigned VLJ about the severity of his IHD symptoms, the Veteran did not assert that his condition is worse.  See Hearing Transcript at pgs. 10-11.

On review of all the evidence, both lay and medical, the Board finds that a disability rating in excess of 60 percent is not warranted for the Veteran’s IHD.  The Veteran’s symptoms were similar in severity, frequency, and duration throughout the entire period on appeal.  See Vasquez-Claudio v Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).  The evidence shows that, at worst, the Veteran’s METs level during the rating period was 4 and his left ventricular ejection fraction was between 55-66 percent, all of which approximate a 60 percent rating.  The Veteran is not entitled to a 100 percent rating, as the evidence does not show that there was chronic congestive heart failure; or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricle dysfunction with an ejection fraction of less than 30 percent.  Further, no evidence of record reflects a finding of congestive heart failure.  Indeed, the January 2014 VA examiner and Doctor M.R. in the April 2019 heart DBQ expressly noted that the Veteran is negative for congestive heart failure.  Although the Veteran’s treatment records consistently note under prior medical history that he had unspecified diastolic heart failure, the Board finds that this evidence is inconsistent with the majority of the evidence of record, including in particular the January 2015 VA treatment record that reflects diastolic filling pattern normal for the Veteran’s age.  Actually, the record reveals no diagnosis of heart failure of any variety during the period on appeal.  Thus, the Board finds that the preponderance of the evidence of record does not support a finding that the Veteran has congestive heart failure to warrant a 100 percent rating.

In sum, the evidence of record shows that a disability rating in excess of 60 percent for the entire period on appeal is not warranted for the Veteran’s IHD.  As such, the Veteran’s claim for a disability rating in excess of 60 percent for IHD must be denied.  38 C.F.R. § 4.104, Diagnostic Code 7005.

The Board has considered other potentially applicable Diagnostic Codes.  The Veteran has not been diagnosed with any other cardiac disabilities that are contemplated by the Diagnostic Codes pertinent to heart conditions, including congestive heart failure.  See, e.g., April 2019 VA IHD DBQ completed by M.R., MD.  Therefore, DCs for other cardiovascular diseases are not for application.  38 C.F.R. § 4.104, DCs, 7000-7020 (2018).

Increased Rating Claim for PTSD

The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula (General Rating Formula) for Mental Disorders.  See 38 C.F.R. § 4.130.

Under the General Rating Formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent rating is warranted if the evidence establishes 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/or inability to establish and maintain effective relationships.  Id.

A 100 percent rating (total occupational and social impairment) is warranted due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).  The use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Id. at 442.  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.  The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA’s general Rating Formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating; however, the Court further indicated that, without those examples, differentiating between rating evaluations would be extremely ambiguous.

In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014.  Here, the claim for an increased rating was pending prior to August 2014; however, the appeal regarding the assignment of the rating was not certified to the Board until 2019, and as such, only DSM-5 applies.  Because the Court’s emphatic pronouncement in Golden that the GAF scores are methodologically flawed and are particularly unreliable as applied to PTSD, in this decision, the Board places no reliance on GAF scores in this case.

Rating Analysis

The Veteran has been rated by the RO at 10 percent disabling for PTSD, effective March 19, 2009, 50 percent disabling effective April 22, 2010, and 70 percent disabling from July 29, 2015.  The Veteran asserts that his service-connected PTSD should be rated at 100 percent [for the entire rating period].  See Hearing Transcript at pg. 4. 

For the reasons set forth below, the Board finds that a disability rating of 100 percent is warranted for the Veteran’s PTSD from August 14, 2012, but no earlier, and a disability rating in excess of 50 percent for the period prior to August 14, 2012 is not warranted.

Turning to the evidence, in May 2009, the Veteran underwent a VA initial PTSD examination, at which time the VA examiner rendered diagnosis of chronic PTSD, concluding that there was no evidence of another psychiatric disorder, although he suspected that the Veteran was likely affected by situational depression.

In terms of social impairment, the examiner noted that the Veteran said he had been married four times, that he had been married nine years to his current wife, but that they were having problems, suggesting that divorce was possible because his wife believed he was too controlling and that she told him she felt like she was “walking on egg shells around me.”  The Veteran said he spends time fishing and working on his motorcycles, and that he had some friends with whom he visited, and he visited his mother.  The Veteran said that once in a great while he would dine out but always sits near the back of the restaurant, he rarely entered large stores, and had only recently been able to enter a mall.

In terms of occupational impairment, the examiner noted that the Veteran said he had not worked since 2004 when he fell off a ladder while doing carpentry work.  He said his longest held job was two years in construction.  The Veteran said he spent time in jail after service for unpaid traffic tickets and driving a stolen motorcycle.  He said he was incarcerated in 1986 for possession of methamphetamine.

During the examination, the Veteran was casually groomed and oriented in all spheres.  He his speech was normal, his mood was generally euthymic, and then he became angry when talking about his frustration with VA.  His affect was appropriate to content.  His thought processes and associations were logical and tight, with no loosening of associations or confusion.  His memory was grossly intact.  The Veteran’s judgment was adequate, but his insight was somewhat limited.  He did not endorse hallucinations or delusions, and he denied suicidal ideation.  He reported occasional homicidal ideation but denied intent.

The examiner noted symptoms that included nightmares occurring three to four times per week, sleep impairment, intrusive thoughts related to his experiences in Vietnam, easily startled “by just about anything,” hypervigilance, avoidance of crowded places such as malls. 

The examiner concluded that the Veteran had no psychiatric disorder that precluded employment, and no impairment in thought processing or communication was noted.

In June 2010, the Veteran underwent a VA PTSD review examination, at which time the VA examiner confirmed the previous diagnosis of chronic PTSD.  The examiner said there was no evidence of another psychiatric disorder during the examination.

In terms of social impairment, the examiner noted that the Veteran had been married four times, the Veteran said he believed his current wife of ten years was about to leave him, and that they had spent more time separated than together the last few months, and she had talked about leaving him for good.  The Veteran said he had one child, a 22-year-old daughter who has two young children of her own, and he enjoys seeing his grandchildren occasionally, but he said he avoids his family quite a bit of the time.  He said he would camp in the woods for days at a time to stay away from people and shopped at night when fewer people are in stores.  The Veteran said he feels more relaxed and less anxious when he is totally by himself in a remote location.

In terms of occupational impairment, the examiner noted that the Veteran was currently employed part-time doing carpentry and cabinet making as jobs become available.  He reported difficulties dealing with people when he is employed.  

During the examination, the Veteran was casually but neatly dressed and groomed.  He was alert and oriented in all spheres.  He displayed mostly positive emotion with mild anxiety and irritability.  His speech was logical, coherent and within normal limits with respect to rate and rhythm.  His mood was generally euthymic with mild anxiety ad irritability.  His affect was appropriate to his mood.  

He was a credible historian.  The Veteran’s thought processes were logical and tight, with no loosening of associations.  His insight and judgment were adequate, and his memory was largely intact.  He reported no hallucinations or delusions; he denied suicidal ideation.

The examiner noted symptoms including anxiety, irritability, avoidance of social interactions, paranoia, hypervigilance, nightmares about his experiences in Vietnam, and related sleep impairment, and impairment of interpersonal relationships, particularly his relationship with his wife.  The Veteran described a fear of someone trying to break into his home or shed and getting up in the middle of the night to check to make sure nobody is outside.

The examiner determined that the Veteran was competent for VA purposes and was not in need of psychiatric hospitalization at the time of the examination.  The examiner noted that no impairment in thought processing or communication was indicated.

During a January 2011 VA outpatient visit, the Veteran endorsed having nightmares and anxiety.  On examination, he was alert and oriented in all spheres, coherent, and negative for psychosis.  The assessment included depression and PTSD. 

In August 2011, the Veteran underwent a Social Security Administration (SSA) psychological evaluation during which the clinical psychologist diagnosed PTSD by history, depression, and unspecified personality disorder.  The Veteran said he has a 24-year-old daughter and two grandchildren.  He reported that he goes to a retail store late at night or early in the morning so he would not have to cope with people.  He said he had been divorced four times and that his ex-wives told him they had to walk on egg shells around him.  The Veteran reported experiencing depression, irritability, anxiety, sleep impairment, and he indicated that he was drinking more alcohol than in the past.  He admitted to becoming violent when angry.  He stated a desire to be alone.  The Veteran said he is not close with his siblings.  The Veteran said he does not attend church, but he does attend motorcycle shows occasionally and he builds motorcycles sporadically. 

On examination, the Veteran was alert and oriented to his environment.  His appearance was disheveled.  His affect was irritable, and his mood was depressed.  His speech was receptive, expressive, and functional.  His thought process was logical and coherent.  He showed adequate ability for abstract reasoning, indicating that his thinking was functional for simple/complex problem-solving strategies.  His thought content was relevant.  He denied perceptual abnormalities.  He was able to name five cities and the President of the United States.  He indicated that he did not watch or hear news and he did not have any knowledge of current affairs.  His overall memory skills were functional, including long term memory skills for personal material.  He was able to repeat seven digits forward and was able to remember three to four words after 15 minutes delay and with distraction.  He had functional math skills, being able to complete simple/moderate math problems indicative of a functional ability for daily calculation.  His concentration was functional.  His social judgment seemed functional and he was able to function in daily affairs without supervision.  His ability to relate was difficult.  He was distant and did not seem to show interest in developing any topic. 

The SSA psychologist concluded that the Veteran was able to reason and make occupational, personal, and social adjustments, he was able to complete personal hygiene without supervision, he was competent to manage his funds, and he was able to pay attention and focus on a task, although it was determined, in part, that the Veteran was not able to relate to other adults.

A February 2012 VA outpatient record reflects that the Veteran was experiencing anxiety attacks.  On examination, he was alert, oriented, and dressed casually with good hygiene.  His insight and judgment were intact, he was negative for delusions, and suicidal ideation.

In August 2012, the Veteran underwent a VA PTSD review examination.  The VA examiner confirmed the diagnosis of chronic PTSD, characterizing it as “mild to moderate.”  The examiner also diagnosed polysubstance dependency, ongoing, and unspecified personality disorder with antisocial and narcissistic traits.  The examiner noted that it was possible to differentiate the symptoms associated with the various psychiatric diagnoses.

In terms of social impairment, the examiner noted that the Veteran stated he is the oldest of eight children, he was raised by both parents who both worked a lot and frequently moved.  He left home at age 15 and dropped out of school having completed the tenth grade.  The Veteran was divorced a fourth time after an eleven-year marriage and was living alone at the time of the examination.  He had one daughter from his second marriage.  He was frequently in contact with his mother and siblings, although he did not get along with all siblings.  He had two close friends but saw them only infrequently.  He was no longer a full member of a motorcycle club because of a disagreement with some other members, though he still attended meetings.  The examiner noted that amphetamine abuse was a significant issue in the Veteran’s life.  

In terms of occupational impairment, the examiner noted that prior to service, the Veteran worked as a plasterer’s apprentice and at a salvage yard.  He said he received a dishonorable discharge from the service due to conduct issues and spent time in prison through 1973.  He said he later was able to get his discharge upgraded to a general discharge.  He worked in construction in various entry-level jobs, mainly doing commercial and industrial construction, and was self-employed for a long time, with his longest job was for two years working on the construction of a hospital.  He said he had trouble finding employment because of numerous felonies, but often worked on a self-employed basis.  The Veteran said he was good at what he did but had chronic problems getting along with people and would become angry and walk off jobs.  He said he eventually broke both arms and could not continue working as of 2004.  The examiner noted that a review of the Veteran’s history revealed that the vast majority of his work-related problems had to do with his polysubstance dependence and personality disorder.

On examination, the Veteran was well-oriented to time, place, person, and situation.  He was well-groomed and his affect was primarily one of irritability and anger.  He was negative for significant thought disorder and his thought process was generally logical and coherent.  His social skills were fair to poor.  His psychomotor functioning was within normal limits.  His reasoning was fair, but his judgment was poor.  Verbal comprehension was low average.  The Veteran described a decline in concentration and short-term memory, which the examiner attributed to a history of polysubstance abuse.  His long-term memory was fair.  Interpersonally, the Veteran showed clear signs of narcissism and antisocial attitudes.

The examiner identified symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; inability to establish and maintain effective relationships; suicidal ideation; and persistent danger of hurting self or others.  The examiner also noted symptoms of hypervigilance, exaggerated startle response, avoidance of crowds, intrusive thoughts, nightmares about three to four times a week, flashbacks, psychological distress, and physiological arousal when exposed to trauma triggers including anniversaries of traumatic events and being around Vietnamese people, avoidance of typical triggers and thoughts about traumatic events, difficulty recalling details of traumatic events, diminished interest, and interpersonal detachment.  The examiner stressed that some of the Veteran’s avoidant symptoms relate, in part, to the personality disorder and substance abuse.  The examiner noted that symptoms of insomnia, significant anger outbursts, and poor concentration were more likely than not caused by the Veteran’s amphetamine use, other substance use, and his personality disorder.  The examiner concluded that the Veteran’s polysubstance dependency accounted for his impulsiveness, auditory hallucinations, paranoia, significant mood swings with depression, feelings of guilt, fatigue, suicidal thoughts, and bouts of extreme agitation.

The examiner concluded that the Veteran had moderate to severe occupational impairment primarily relating to his polysubstance dependency and personality disorder, and that PTSD had a mild to moderate impact on occupational functioning resulting in reduced reliability and productivity.  However, the examiner stated that “it does appear that [the Veteran’s PTSD] is more impairing than had previously been described.” Overall, the examiner estimated that the Veteran’s PTSD “would account for general reduction of reliability and productivity on the job and in social interactions due to distraction from intrusive thoughts, hypervigilance, and startle.  The Veteran’s personality disorder and polysubstance dependency account[s] for more prominent impairment resulting in deficiencies in most areas due to anger outbursts, disregard for social rules and norms, chronic problems with authority, and mood swings.”

The examiner determined that the Veteran was capable of handling his financial affairs.

In November 2012, the Veteran reported increased depression and anxiety. 

During a December 2012 VA outpatient mental health social work consultation, the Veteran endorsed PTSD symptoms, reported sleep disturbances, nightmares,  anniversary reaction to a suicide he witnessed in Vietnam, flashbacks, exaggerated startle response, avoidance of people to the extent that he went to the grocery store a 2:00 or 3:00 a.m., anger problems, panic attacks, and crying spells.  The Veteran said he sometimes talks to angels or demons when he is driving.  On examination, the Veteran was alert and oriented, he displayed broad affect, anxious & irritable mood, fair eye contact, speech clear, thoughts goal directed, no suicidal or homicidal ideation, no psychotic manifestations observed.  The diagnosis was PTSD, personality disorder, and substance abuse by history.

In January 2013, the Veteran reported frequent anxiety attacks and panic attacks, as well as depression.  He endorsed suicidal ideation, hallucinations, sleep disturbance, nightmares, and flashbacks.  On examination, the Veteran was oriented in all spheres and his hygiene was good.  Psychomotor activity was normal and purposeful with no focal deficits.  Speech was normal, clear, and coherent.  His insight was good, his judgment fair.  His affect was blunted and bland, and his mood was dysphoric.  The Veteran’s thought process was linear and goal-directed, and his thought content was vague about suicidal ideation.  He recounted audio/visual hallucinations.  The assessment was mood disorder with mixed emotions of anxiety and irritability; PTSD; bereavement; history of alcohol abuse, and personality disorder NOS.

VA outpatient treatment notes from June 2013 reflect that the Veteran was oriented in all spheres and his hygiene was good.  Psychomotor activity was normal and purposeful with no focal deficits. Speech was normal, clear, and coherent.  His insight was fair, and his judgment was noted as fair.  His affect was blunted and bland, and his mood was euthymic.  The Veteran’s thought process was linear and goal-directed, and he denied suicidal ideation.  The Veteran again recounted experiencing audio/visual hallucinations.  The assessment was mood disorder with mixed emotions of anxiety and irritability; PTSD; bereavement; alcohol use intermittently, and personality disorder NOS.

In October 2013, the Veteran was alert and oriented in all spheres, his mood and affect were normal, and he was negative for psychosis and hallucinations.  He denied suicidal ideation.  The Veteran was able to perform activities of daily living.

During a VA outpatient visit in April 2014, the Veteran was oriented in all spheres and his hygiene was good.  His psychomotor activity was normal and purposeful with no focal deficits.  His speech was normal, clear, and coherent, and his insight and judgment were both characterized as fair.  His affect was blunted and bland, and his mood was dysphoric.  The Veteran’s thought process was linear and goal-directed, and he denied suicidal ideation.  The Veteran endorsed audio hallucinations, noting, “I see myself sitting in a jungle and sitting in a helicopter ... I hear things ... I try to rationalize it.”  The assessment was mood disorder with mixed emotions of anxiety and irritability; PTSD; bereavement; alcohol dependence intermittently, and personality disorder NOS.

In September 2014, the Veteran was experiencing frequent depression and panic attacks.  He endorsed self-medication with alcohol and said he had had thoughts of wanting to drive his motorcycle into a lake.  An outpatient depression screening indicated severe depression.

September 2014 VA outpatient notes reflect that the Veteran was oriented in all spheres and his hygiene was good.  His psychomotor activity was normal and purposeful with no focal deficits, and his speech was normal, clear, and coherent.  His insight was fair, his judgment was fair, his affect was blunted and bland, and his mood was irritable.  The Veteran’s thought process was linear and goal-directed.  He denied suicidal ideation.  He endorsed audio hallucinations, noting, “I hear things that are not there.  Sometimes they ask me what am I [sic] doing.”  The assessment was mood disorder with mixed emotions of anxiety and irritability; PTSD; bereavement; alcohol dependence intermittently, and personality disorder NOS.

During an October 2014 VA outpatient visit, the Veteran reported experiencing anxiety and panic attacks.  On examination, he was alert and oriented, but his mood was characterized as depressed/irritable with congruent affect.  His grooming adequate, his thought processes linear and goal oriented, and his thought content appropriate to the situation.  The Veteran was negative for suicidal ideation and thought disorder.  The impression was PTSD and untreated anxiety attacks and panic attacks.

January 2014 VA neuropsychology consultation notes reflect that the Veteran was experiencing panic attacks, depression, sleep disturbances, and nightmares.  He became depressed in December and stopped taking his medications because he “didn’t care,” which resulted in problems related to his diabetes and altered mental status.  He expressed concern that his memory is unreliable.  On examination, he was alert and oriented, his mood was depressed with flat affect.  He denied suicidal and homicidal ideation.  The impression was PTSD, depression, and panic attacks.

In July 2015, the Veteran underwent a VA PTSD review examination, at which time the VA examiner confirmed the diagnosis of PTSD, characterizing it as “severe,” as well as diagnosing unspecified depressive disorder and unspecified neurocognitive disorder.  The examiner determined that it was not possible to differentiate the symptoms attributable to each diagnosis.

In terms of social impairment, the examiner noted that the Veteran was married four times, the last marriage ending in 2010 due to his violent anger without harming his former wife.  He said she moved back in with him a short time after the divorce, and they have been living together for four years.   He said his anger and self-destructive behavior continued to scare his ex-wife.  He said he calls his daughter every month or two, but his two young grandchildren get on his nerves.  He also called two of his siblings, but they only talked briefly.  He said he had minimal contact with his ex-wife’s family.  He said his best friend died the previous year, and he had lost most of his friends.  He said he has one good friend he has known for 20 years.  He said his primary form of relaxation was riding his motorcycle.  He remained on good terms with the members of his local motorcycle club who he saw once a year.  He said he had trouble trusting his VA counselors because none of them remained on his case long enough to make a difference.  The Veteran said he started drinking to help him sleep because prescribed medication tended to impair his sleep.

In terms of occupational impairment, the examiner noted that the Veteran reported that he had not worked since 2004 when he fell 25 feet working as a carpenter.

During the examination, the Veteran was alert and oriented.  At the outset of the examination he was angry, critical of VA staff and the testing protocols, with pressured speech.  He had difficulty following multiple directions.  He became tearful while discussing wounded veterans.

The examiner identified PTSD symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occurred more than once a week; chronic sleep impairment; mild memory loss; impairment of short- and long-term memory; flattened affect; difficulty in understanding complex commands; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; suicidal ideation; impaired impulse control; and neglect of personal appearance and hygiene.  Additionally, a cognitive assessment indicated moderate cognitive impairment.

The examiner concluded that the Veteran’s psychiatric disabilities resulted in occupational and social impairment with reduced reliability and productivity, noting that it was not possible to differentiate what portion of the occupational and social impairment is caused by each of the Veteran’s mental disorders because the depressive and neurocognitive disorders are secondary to and cannot be separated from PTSD.

The examiner determined that the Veteran was capable of handling his financial affairs.

During a March 2017 VA outpatient appointment, the Veteran reported depression, nightmares, and that he was using methamphetamine and alcohol.  He indicated that he would frequently leave home for two to three days “without medications.”  The Veteran was oriented in all spheres and his thought processes were organized and goal directed.  His mood was irritable, and his judgment and insight were impaired.  He denied suicidal ideation and hallucinations, and he was negative for delusions and paranoia.  The impression was PTSD and methamphetamine abuse.

In April 2017, the Veteran reported that he experienced panic attacks often, and that he used methamphetamine and drank beer to help avoid nightmares.

In November 2018, private licensed mental health counselor Z.G. submitted a DBQ acknowledging earlier diagnoses of PTSD and major depressive disorder with psychotic features.

In terms of social impairment, the examiner noted that the Veteran reported that he is the oldest of four brothers and four sisters, and as a child he was frequently left in charge of his younger siblings because both his father and mother worked.  When his parents separated, the Veteran and a brother lived with grandparents for two years, and then his parents reunited.  The Veteran said he was married and divorced four times, but he continued to live with his fourth ex-wife.  The Veteran said he earned his GED and completed a year and a half of college course-work while in prison.

In terms of occupational impairment, the examiner noted that the Veteran said while in service he was charged twice for being absent without leave and demoted and received an under honorable discharge.  Following discharge, he said he worked as a salesman, then got into carpentry and stayed with that the rest of his career in the construction trade.  The Veteran said he fell off a ladder and broke both hands, and then drove a truck for a while.  He said he has been unable to work for about 10 years.  The Veteran said he had substance abuse problems in the past, but he hardly drank anymore, and though he used drugs to avoid having nightmares, he said he does not currently use drugs.

During the examination, the Veteran was oriented to person and place but stated that he did not know what year it is, and he was unable to name the current President.  He said he sometimes goes “for a while” without taking a shower.  His speech was slow and non-linear, and he cried while discussing traumatic events.  His affect was sad, his mood depressed.  His thought process was non-linear, and his thought content was characterized as sometimes illogical, paranoia.  In regard to perception, the Veteran said, “I saw my dead father sitting in the car with me talking to me,” he endorsed pronounced flashbacks and auditory and visual hallucinations.  The Veteran reported experiences in which he would travel long distances before becoming aware of his surroundings in a confused state, unable to recall how he got there.  His judgment and insight noted to be poor.  The Veteran endorsed suicidal ideation but denied intent, and he denied homicidal ideation.  Z.G. noted that the Veteran’s ability to care for himself was diminished.

Z.G. identified PTSD symptoms of flashbacks; frequent hallucinations and spatial disorientation, ongoing paranoia; recurring distressing dreams related to traumatic events; dissociative reactions such as flashbacks; intense or prolonged psychological distress at exposure to cues that symbolize or resemble traumatic events; and marked physiological reactions to cues that symbolize or resemble traumatic events.  Major depressive disorder symptoms were noted as depressed mood; markedly diminished interest or pleasure in all or almost all activities; daily insomnia; daily psychomotor agitation or retardation; fatigue nearly every day; feelings of worthlessness or excessive or inappropriate guilt nearly every day; diminished ability to think or concentrate, or indecisiveness nearly every day; and recurrent thoughts of death, recurrent suicidal ideation.  The counselor concluded that the Veteran’s PTSD and major depressive disorder resulted in total occupational and social impairment due to gross impairment in thought processes and communication, experiencing persistent delusions and hallucinations, and engaging in grossly inappropriate behavior.  Notably, Z.G. recommended that the Veteran avoid seeking employment due to severity of his PTSD and MDD symptoms.

During a November 2018 VA outpatient visit it was noted that the Veteran’s hygiene was good, his psychomotor activity was normal/purposeful with no focal deficits, and his speech was normal.  The Veteran denied auditory and visual hallucinations, and he was negative for delusions and paranoia; judgment and insight intact.  During a December 2018 VA neurology consultation, the Veteran exhibited no memory problems, and had no difficulty recalling names.

In April 2019, private psychologist A.O., Ph.D. reviewed the Veteran’s claims file and rendered diagnoses of PTSD, unspecified depressive disorder, and unspecified neurocognitive disorder.  In terms of social and occupational impairment, A.O. reiterated the information set forth above in the VA examination reports, the November 2018 private vocational assessment, and the November 2018 private mental health evaluation reflected above.  A.O. observed that the Veteran’s psychiatric symptoms have become progressive worse in time, particularly symptoms of irritability and his ability to engage in social and occupational relationships as demonstrated by the Veteran’s four marriages that ended in divorce due to his irritability, and because his irritability more than likely led to disagreements in coworkers and supervisors as well as problems with reliability and productivity.  A.O. explained that the Veteran’s psychiatric disabilities, particularly his PTSD, resulted in gross impairment in thought communication, persistent delusions or hallucinations, persistent danger of hurting himself or others, inability to perform activities of daily living, and memory loss for names of close relatives, his own occupation, or his own name.  While acknowledging that there are overlapping symptoms that make differentiation of the symptoms difficult, A.O. concluded that the Veteran’s service-connected psychiatric disabilities resulted in total occupational and social impairment.

During a June 2019 VA outpatient appointment, the Veteran was positive for depression and panic attacks.  It was noted that he was alert and oriented in all spheres.

On review of all the evidence, both lay and medical, the Board finds that a disability rating of 100 percent is warranted for the rating period from August 14, 2012, the date of the August 2012 VA PTSD examination.  From that date forward, the Veteran’s symptoms were similar in severity, frequency, and duration.  See Vasquez-Claudio v Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).  Although the evidence shows that Veteran’s symptoms have varied, the treatment records and VA examinations reflect persistent delusions and hallucinations from August 2012, forward, and persistent danger of hurting himself or others.  This is demonstrated by the Veteran’s neglect of personal hygiene and his endorsement of hearing voices that ask him what he is doing, talking to angels, and believing that his deceased father was riding in his car talking to him.  Additionally, the treatment records and examinations revealed that the Veteran experienced such [deep] depression that he stopped taking his medications because he “didn’t care,” resulting in problems associated with diabetes and altered mental status, leaving home for days at a time without his medications, and suicidal ideation.  Although the August 2012 VA examiner concluded that the Veteran’s PTSD and substance abuse symptoms could be differentiated, and attributed the Veteran’s hallucinations to substance abuse, this is contradicted by the extensive medical record throughout the period from August 2012, to include more recent VA examinations.  Notably, the Veteran’s treatment records clearly indicate that his PTSD symptoms have resulted in self-medication with alcohol.  See, e.g., VA primary care notes dated September 2, 2014.  Thus, resolving any reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s PTSD symptoms from August 14, 2012 forward approximate a 100 percent rating.

However, the Board finds that for the rating period prior to August 14, 2012, a disability rating in excess of 50 percent is not warranted.  The lay and medical evidence for this period reflects that the Veteran’s hygiene was adequate, his thought processes were logical, his memory was intact, his judgment was adequate, and there were no impediments to communication.  He was able to pay attention and focus on a task.  Although the Veteran experienced anxiety attacks, he denied hallucinations, delusions, and suicidal ideation.  The Veteran encountered difficulties dealing with other people, yet he continued to be employed as jobs became available doing carpentry and cabinet making.  The Veteran was competent for VA purposes.  The Veteran occasionally attended motorcycle shows and he built motorcycles from time to time.   His overall memory skills were functional.  Therefore, the Board finds that for the period prior to August 14, 2012, the Veteran’s PTSD symptoms approximated occupational and social impairment with reduced reliability and productivity, which approximates a disability rating of 50 percent, but no higher.

Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 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).

Entitlement to TDIU Prior to November 1, 2015

The RO has already assigned entitlement to a TDIU effective November 1, 2015.  

The Veteran seeks an effective date earlier than November 1, 2015, for the award of a TDIU.  However, the TDIU claim is moot, effective August 14, 2012.  As of that date, the Veteran is in receipt of a 100 percent schedular rating for PTSD as the result of this Board decision.  To grant a TDIU, a Veteran cannot be in receipt of a total disability rating either for a single disorder or based on a combined rating.  38 C.F.R. § 4.16.  Thus, the Veteran is not eligible under the terms of the regulation for a TDIU rating since August 14, 2012.  See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994) (claim for TDIU presupposes that the rating for the condition is less than 100 percent).

Nevertheless, the Veteran met the schedular criteria for a TDIU from April 22, 2010.  As the rating period for the Veteran’s instant claim for an increased rating for PTSD also commenced on April 22, 2010, and the issue of entitlement to a TDIU is part and parcel with an increased rating claim, Rice, supra., the Board must determine whether it is factually ascertainable that the Veteran was unable to obtain and maintain gainful employment from April 22, 2010.  

Applicable Laws and Regulations

It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16.  A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.”  38 C.F.R. § 3.340(a)(1).

Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent.  38 C.F.R. § 4.16(a).  The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation.  Id.  See 38 U.S.C. § 1155.

The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator.  See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Analysis

Turning to the record, a May 2009 VA initial PTSD examination report reflects that the Veteran reported that he had not worked since 2004 when he fell off a ladder while doing carpentry work.  The examiner concluded that the Veteran had no psychiatric disorder that precluded employment, and no impairment in thought processing or communication was noted.

In May 2010 during a VA diabetes examination, it was noted that the Veteran’s diabetes mellitus did not impact the Veteran’s occupation as a carpenter, with functional impairment mainly limited to intercourse.

The Veteran underwent a VA PTSD examination in June 2010.  The Veteran said he had worked in construction and carpentry, but in recent years “he has mainly worked for himself because he said he cannot get along with supervisors and coworkers, so he prefers to be self-employed.”  He noted that with the downturn in the economy in recent years his business had dropped off, therefore he was working only part-time doing carpentry work “when he can find it.”  The VA examiner noted that no impairment in the Veteran’s thought processing or communication was indicated.

In his April 2011 application for Social Security Administration benefits, the Veteran reported being able to lift only eight to ten pounds and that he was unable to walk more than 100 feet.  He said he had been fired or laid off from jobs because of problems getting along with people and that he had had more than a couple employers over the past four years.  The Board notes that SSA determinations are not binding on the Board, and while they are relevant, and the records relied upon to make SSA determinations are probative evidence specifically in consideration of the Veteran’s claim for TDIU, under the facts of this case, the Board assigns higher probative weight to the medical and lay evidence discussed herein.  See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA recognition of disabilities and SSA decisions are not binding on VA).

During a VA heart examination in December 2010, the examiner concluded that the Veteran’s IHD did not impact his ability to work.  

A February 2012 VA outpatient treatment note reflects that the Veteran complained of left arm tenderness, and the treatment notes appear to indicate that the tenderness was due to a scratch from “construction work.”

In August 2012, the Veteran underwent a VA PTSD review examination, during which the Veteran said he had trouble finding formal work because of his numerous felony convictions, but that he often worked on his own in a self-employed status.  The examiner stressed that while some of the Veteran’s avoidant symptoms related, in part, to the personality disorder and substance abuse, there was overlap with PTSD symptomatology; however, the examiner noted that it was possible to differentiate the symptoms attributable to each diagnosis.  The VA examiner noted that symptoms of insomnia, significant anger outbursts, and poor concentration were more likely than not caused by the Veteran’s amphetamine use, other substance use, and his personality disorder.  The examiner concluded that the Veteran’s polysubstance dependency accounted for his impulsiveness, auditory hallucinations, paranoia, significant mood swings with depression, feelings of guilt, fatigue, suicidal thoughts, and bouts of extreme agitation.  The examiner concluded that the Veteran had moderate to severe occupational impairment primarily relating to his polysubstance dependency, noting that “it appears that the vast majority of his work-related problems had to do with his polysubstance dependence and personality disorder,” and that PTSD had a mild to moderate impact on occupational functioning resulting in reduced reliability and productivity.  The VA examiner emphasized that “[w]hile these issues have contributed to problems on the job as described above, they do not prevent him entirely from working.  He was able to work in a self-employed status until accruing a number of physical problems.  He has not been able to find steady work with traditional employers because of his history of extensive legal problems and substance abuse.  This, again, is non-service-related issue.”

During VA examinations in August 2012, the examiners concluded that the Veteran’s hearing loss, tinnitus, IHD, hepatitis, and diabetes did not impact his ability to work.

During a VA general medical examination in August 2012, the examiner identified the service-connected disabilities as IHD, liver condition to include hepatitis/cirrhosis, a disorder of the male reproductive organs, residuals of a fractured coccyx, a back condition, and diabetes mellitus.  The examiner concluded that the Veteran’s “individual and combined” service-connected conditions “do not prevent employment for light and or heavy duty.”  Notably, the examiner did not identify PTSD as a service-connected disorder.

A November 2018 retrospective vocational assessment by private Vocational Rehabilitation Consultant J.S. details the Veteran’s work history from his high school days when he worked in a salvage yard.  He left school in the tenth grade and subsequently enlisted in the Army with parental consent.  He completed his GED during service.  His Army duties consisted of light vehicle driver, heavy equipment operator, and helicopter crew member/door gunner.  After separation from service the Veteran spent 22 months in prison for drug distribution, thereafter worked various types of short-term jobs such as farm work, truck driver, and construction worker for five to six years, then worked as an independent carpenter until he sustained an on-the-job injury in 2004.  Following his injury in 2004, the Veteran worked on a part-time basis until around 2012 when he could no longer work in any capacity due to the severity of his PTSD symptoms, particularly his persistent irritability and angry outbursts which made it impossible to interact effectively with others.

J.S. characterized the Veteran’s work history as consisting of semi-skilled labor, which required average learning and reasoning abilities and performance of repetitive short-cycle duties, attaining precise preset limits, tolerances, and standards.  Notably, J.S. concluded that the Veteran lacks transferrable skills to alternate occupations within the general labor market.  She opined that based on the Veteran’s service-connected chronic mental disorders, he has not been able to secure or perform any significant gainful occupation “since 2012” when his psychiatric and behavioral difficulties worsened to the point where he could no longer continue to work in any substantially gainful capacity within the general labor market, even on an independent self-employed basis.  See Vocational Assessment by J.S. dated November 21, 2018 

The November 2018 vocational assessment is competent, credible and probative: It was authored by a vocational rehabilitation consultant with 35 years’ experience who reviewed the Veteran’s claims file and was therefore familiar with the Veteran’s symptoms, diagnoses, and treatment of his mental disorder; the opinion was based on a review of the evidence of record as well as lay statements of the Veteran.  The opinion is consistent with the medical evidence of record and contains clear conclusions with supporting data connected by a reasoned medical explanation.  See Nieves-Rodriguez v. Peake, 22 Vet. App. At 301-02.  Notably, there are no medical or professional opinions or other competent evidence of record that weighs against the opinion of J.S.  Accordingly, the Board finds the November 2018 vocational assessment highly probative, competent and persuasive evidence in this case.

On review of all the evidence, both lay and medical, the Board finds that the Veteran was unable to obtain and maintain gainful employment as of August 14, 2012.  Although the record suggests that the Veteran’s service-connected disabilities did not initially impact his ability to seek and maintain gainful employment from the beginning of the rating period, the evidence demonstrates that by August 2012 the Veteran’s condition had deteriorated as recognized in the August 2012 VA PTSD examination report and the November 2018 retrospective vocational assessment by private Vocational Rehabilitation Consultant J.S.  While the August 2012 VA examiner concluded that the majority of the Veteran’s symptoms were related to his polysubstance abuse and his inability to find work the result of prior felony convictions, the VA examiner also pointed out that the Veteran’s service-connected PTSD had a mild to moderate impact on occupational functioning, which resulted in reduced reliability and productivity, and that his physical problems, which at that time would have included his service-connected IHD, hepatitis B and C, diabetes mellitus, hearing loss, and residuals of a fractured coccyx, prevented him from working in a self-employed status.  Likewise, the November 2018 Vocational Assessment by J.S. reflects that the Veteran worked on a part-time basis until around 2012 when he could no longer work in any capacity due to the severity of his PTSD symptoms, particularly his persistent irritability and angry outbursts which made it impossible to interact effectively with others, and that the Veteran lacks transferrable skills to alternate occupations within the general labor market, rendering him unable to secure or perform gainful employment “since 2012.”  Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran was unable to obtain and maintain gainful occupation from August 14, 2012, the date of the VA examination.  

The Board acknowledges the assertion of the Veteran’s representative during the June 2019 Board hearing that entitlement to a TDIU should be effective from the commencement of the period on appeal in April 2010.  See Hearing Transcript at pg. 9.  However, the evidence shows that during the rating period, prior to August 2012, none of the Veteran’s service-connected disabilities precluded employment.  Notably, the August 2012 VA PTSD examiner concluded that the Veteran’s physical problems, including his service-connected heart, hepatitis, diabetes, hearing loss, and residuals of a fractured coccyx, prevented him from working in a self-employed status at that time, and the Veteran’s own expert, rehabilitation consultant J.S., opined that the Veteran was unable to seek or maintain gainful employment as of 2012 due to his service-connected PTSD.

Lastly, in Bradley v. Peake, 22 Vet. App. 280 (2008), the Unites States Court of Appeals for the Veterans Claims (Court) held that although no additional disability compensation may be paid when a total schedular rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC under 38 U.S.C. § 1114(s).  Bradley essentially requires that VA consider a TDIU claim despite the existence of a schedular total rating if VA finds a separate disability supports a TDIU independent of the disability that is rated 100 percent.  See Bradley, 22 Vet. App. at 294.

For the period prior to August 14, 2012, service connection was also in effect for PTSD, IHD, diabetes mellitus, residuals of a fractured coccyx, and hearing loss.  Nonetheless, the record evidence reflects that the Veteran was unable to obtain and maintain employment due solely to his service-connected PTSD from August 2012 forward, as discussed above.  In contrast, the evidence shows that prior to August 2012, none of the Veteran’s service-connected disabilities precluded employment.  Thus, prior to August 14, 2012, there are no service-connected disabilities that support a grant of TDIU independent of the PTSD rated 100 percent disabling since August 14, 2012.

As there remains no case or controversy concerning whether the Veteran is entitled to a TDIU from August 14, 2012, the claim for that period is moot and must be dismissed.  38 U.S.C. § 7105(d)(5) (2012).  Additionally, for the reasons noted above, entitlement to a TDIU prior to August 14, 2012, is not warranted.

REASONS FOR REMAND

Remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration.

The Veteran has a current diagnosis of unspecified sleep disorder, which is characterized by snoring, gasping for air, and excessive daytime sleepiness.  See VA treatment records dated March 12, 2013, April 27, 2015, June 29, 2015.  Although the Veteran’s service treatment records are negative for symptoms or treatment of a sleep disorder, and a 2013 VA sleep study indicated that the Veteran was negative for sleep apnea, review of the claims file reveals that the Veteran’s sleep disturbances have been associated, at times, with his nightmares, anxiety, and flashbacks related to his service-connected PTSD as well as back, arm, and shoulder pain.  See VA treatment records dated June 23, 2008, July 29, 2010, January 14, 2013.  

As the evidence suggests that the Veteran’s current sleep disorder may be related to his service-connected PTSD and/or residuals of a fractured coccyx, on remand, the RO should request a VA medical examination to determine whether the Veteran’s sleep disorder is either proximately due to, or the result of, his service-connected PTSD and/or residuals of a fractured coccyx, or aggravated by either service-connected disability.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).

The matter is REMANDED for the following action:

1. Implement the Board’s decisions herein: (1) granting service connection for peripheral neuropathy of the bilateral upper and lower extremities, secondary to the Veteran’s service-connected diabetes mellitus, type II; (2) restoring the 40 percent rating for hepatitis B and C; (3) restoring the 60 percent rating for ischemic heart disease (IHD); (4) denying a disability rating in excess of 60 percent for IHD; (5) denying a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period prior to August 14, 2012; (6) granting a disability rating of 100 percent for PTSD from August 14, 2012; (7) dismissing as moot the claim for entitlement to a total disability rating based on individual unemployability (TDIU) from August 14, 2012; and (8) denying entitlement to a TDIU for the rating period prior to August 14, 2012.

2. Ensure that all outstanding VA treatment records are associated with the claims file.

3. Then, provide the Veteran with a VA examination by an appropriately qualified clinician to determine the nature and etiology of his currently diagnosed sleep disorder.

The claims file, including a copy of this Remand, will be made available to the examiner, who will acknowledge receipt and review of these materials.  All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail.

The examiner is asked to respond to the following:

Identify all currently diagnosed sleep disorders during the period on appeal, which commenced May 10, 2013.

(a) Provide an opinion whether it is at least as likely as not (50 percent or higher probability) that any currently diagnosed sleep disorder was CAUSED or AGGRAVATED by the service-connected PTSD, to include medication used for treatment of PTSD symptoms.

(b) Provide an opinion whether it is at least as likely as not (50 percent or higher probability) that any currently diagnosed sleep disorder was CAUSED or AGGRAVATED by the service-connected residuals of a fractured coccyx, to include medication used for treatment of the residuals.

(c) If the examiner answers to questions (a) and (b), above, are in the negative, then provide an opinion as to whether the Veteran’s currently diagnosed sleep disorder at least as likely as not (50 percent or higher degree of probability) had its onset during active duty service or is otherwise causally related to it.

*Although the examiner should review the entire claims file, the examiner’s attention is directed to the following document files, which are identified by their VBMS labels and VBMS receipt dates in parenthesis:

*VA sleep clinic/sleep study dated March 6, 2013 (see VBMS “CAPRI,” Receipt Date “08/01/2019” at PDF pgs. 915-922 of 1165);

*VA Sleep Disorder Procedure Note/Pulmonary Procedure Note dated March 12, 2013 (see VBMS “CAPRI,” Receipt Date “08/01/2019” at PDF pg. 915 of 1165 (“Conclusion”));

*VA MHS Psychiatry Individual/Psychiatry Note dated April 27, 2015 (see VBMS “CAPRI,” Receipt Date “08/01/2019” at PDF pg. 571 of 1165); and

*VA Ophthalmology Outpatient Note dated June 29, 2015 (see VBMS “CAPRI,” Receipt Date “08/01/2019” at PDF pg. 550 of 1165 (“Sleep Disturbance, Unspec”)).

4. Thereafter, readjudicate the remanded claim.

 

 

S. B. MAYS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Brad Farrell, Associate Attorney

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.