Citation Nr: 20004661 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 14-25 235 DATE: January 21, 2020 ORDER 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as a nervous condition and posttraumatic stress disorder (PTSD) and diagnosed as other specified trauma and stressor-related disorder (OSTSRD), is granted. 2. Entitlement to an initial compensable rating for malaria is denied. 3. Entitlement to an initial rating in excess of 10 percent, prior to December 1, 2015, for coronary artery disease (CAD) status post myocardial infarction (MI) and coronary artery bypass graft (CABG) [hereinafter identified as CAD] is denied. 4. Entitlement to initial rating of 30 percent, but no higher, from December 1, 2015 to February 5, 2017, for CAD is granted. 5. Entitlement to an initial rating in excess of 30 percent from February 6, 2017 for CAD, is denied. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran’s acquired psychiatric disorder, diagnosed as OSTSRD, is the result of his active duty military service. 2. The Veteran did not have active malaria, a relapse of malaria, or any residuals of malaria any time during the pendency of the appeal. 3. Prior to December 1, 2015, the Veteran’s CAD manifested in dyspnea from a workload of 7 to 10 METs and was treated with continuous medication; there was no evidence of cardiac hypertrophy or dilation or congestive heart failure and the left ventricle ejection fraction was not lower than 50 percent. 4. From December 1, 2015, there is evidence of cardiac hypertrophy on echocardiogram; but there is no evidence of dyspnea, fatigue, angina, dizziness, or syncope from a workload of 5 METS or less and no evidence of congestive heart failure, and the left ventricle ejection fraction was not lower than 50 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as OSTSRD, have been met. 38 U.S.C. §§ 1110; 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for a compensable rating for malaria have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.31, 4.88b, Diagnostic Code 6304. 3. The criteria for a rating in excess of 10 percent for CAD prior to December 1, 2015, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7005. 4. The criteria for a rating of 30 percent, but no higher, for CAD since December 1, 2015, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal of October 2013, March 2014, and April 2017 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). A hearing was held before the undersigned in December 2015. In November 2016, the Board remanded the issues for additional development. The Board also recharacterized the Veteran’s claims of entitlement to service connection for a nervous condition and for PTSD as a claim of entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as a nervous condition and posttraumatic stress disorder (PTSD) and diagnosed as other specified trauma and stressor-related disorder (OSTSRD) Generally, service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). Service connection for PTSD requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between a veteran’s present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2017); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). If stressors which support a PTSD diagnosis are based on combat, fear of hostile military or terrorist activity, or prisoner-of-war experience, in some instances the Veteran’s statements alone may be sufficient to establish the occurrence of the claimed stressors. Otherwise, “credible supporting evidence that the claimed in-service stressor occurred” is required. See 38 C.F.R. § 3.304(f). If a claimed stressor is related to the fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the claimant’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the claimant’s service, the claimant’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). For purposes of 38 C.F.R. § 3.304(f)(3), “fear of hostile military or terrorist activity” means the claimant experienced, witnessed, or was confronted with an event or circumstances that involved actual or threatened death or serious injury, or a threat to the physical integrity of the claimant or others, such as from an actual or potential improvised explosive device, vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the claimant’s response to the event or circumstances involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The Veteran provided a November 2013 statement recounting events during his Vietnam service which included being under fire, seeing fellow soldiers injured, and observing body bags for deceased troops. Military personnel records document his Vietnam service and a stressor based on fear of hostile military activity has been conceded. A January 2014 VA PTSD examination was provided to evaluate the Veteran’s claim. The examiner found that the Veteran did not meet the diagnostic criteria for PTSD or any other psychiatric disorder. The examiner stated the Veteran’s symptoms were not of “sufficient number, frequency or severity” to meet the diagnostic criteria for PTDS or any other mental disorder. A February 2017 VA PTSD examination was also provided. This examiner determined the Veteran did not meet the diagnostic criteria for PTSD. However, under the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition), he diagnosed OSTSRD, which he described as “subthreshold PTSD” and similar to anxiety disorder NOS under the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition). The examiner opined the Veteran’s OSTSRD was related to military combat events where the Veteran feared for his life due to hostile military activity. He noted the Veteran’s symptoms were mild and included “occasional war related nightmares,” minimal avoidance issues, and mild sleep problems. Resolving reasonable doubt in favor of the Veteran, it is at least as likely as not that he has an acquired psychiatric disorder, diagnosed as OSTSRD, causally related to his military service. Service connection for a psychiatric disorder is established. See 38 C.F.R. § 3.304(f); see also Gilbert, supra. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. 2. Entitlement to an initial compensable rating for malaria An October 2013 rating decision allowed service connection for malaria. The condition was rated as noncompensable under Diagnostic Code 6304. Under Diagnostic Code 6304, a 100 percent rating for malaria is assigned when there is an active disease process. After active disease has resolved, a noncompensable rating is assigned. Active infection with malaria and relapses must be confirmed by the presence of malarial parasites in blood smears. Any residual, including liver or spleen damage, is rated under the appropriate system. See 38 C.F.R. § 4.124a, Diagnostic Code 6304. The Veteran seeks an initial compensable rating for malaria. The service treatment records show the veteran was treated for malaria during his active service. These records indicate the condition was “proven by blood smear” and treatment was initiated in October 1967. Follow up treatment in November 1967 documented “malaria smear is negative.” A September 2015 VA infectious diseases examination was provided to evaluate whether a compensable rating for malaria was warranted. The VA examiner observed the Veteran was diagnosed with malaria in 1967 and the condition resolved in 1967. He noted the Veteran’s claim that malaria symptoms returned during yearly bouts with cold and flu infections. However, the examiner found the Veteran did not have any active malaria and had no symptoms or residuals attributable to malaria. In December 2015, the Veteran testified that when he has the flu or a cold, he experiences high fevers, shivers, and he cannot get warm. He explained that these symptoms feel the same as the symptoms he experienced when he had malaria in service. He recalled discussing the possibility that these symptoms were due to a continuing active malaria infection with his private physician, Dr. T. W. There are no records from Dr. T. W. in the claims file. In November 2016, the Board remanded the claim so that these records could be requested. Subsequently, the RO contacted the Veteran and asked him to complete medical release forms to obtain private medical records, including records from Dr. T. W. The Veteran did not return the form. As a layperson, the Veteran is competent to report his symptoms of fevers and chills, but he does not have the expertise to diagnose malaria or the residuals of malaria. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The only competent medical evidence addressing this claim, the September 2915 VA examination, shows no active malaria, no relapse of malaria, and no residuals of malaria. The evidence is not in equipoise as to this issue and the benefit of the doubt doctrine is not applicable. A compensable rating for malaria is not warranted. Id. 3. Entitlement to initial increased rating for CAD, rated as 10 percent disabling prior to February 6, 2017 and as 30 percent disabling thereafter Lewis Gale Medical Center records, from prior to the effective date of this claim, show the Veteran was treated for a myocardial infarction and cardiac bypass surgery in 2003. In August 2012, the Veteran sought service connection for a heart condition. An October 2013 rating decision allowed service connection for CAD and provided a 10 percent rating from the date of the claim. An April 2017 rating decision increased the rating to 30 percent from February 6, 2017. The Veteran seeks an increased initial rating for CAD. CAD is rated, under Diagnostic Code 7005. Under this diagnostic code, a 10 percent rating is warranted for a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, continuous medication required. A 30 percent rating requires a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating requires more than one episode of acute congestive heart failure in the past year; or, a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted where there is chronic congestive heart failure; or, a workload of 3 METs or less resulting 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. One MET (metabolic equivalent) is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters 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 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. See 38 C.F.R. § 4.104, Note (2). A February 2013 VA heart conditions examination is of record. The examiner diagnosed CAD and noted prior myocardial infarction and coronary bypass surgery. At the time of this examination, the Veteran took continuous medication to control his heart condition. There was no evidence of cardiac hypertrophy and no cardiac dilation. A left ventricular ejection fraction below 50 percent and congestive heart failure were not indicated. During an interview, the Veteran reported dyspnea and fatigue with exertion consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, or jogging. This level of exertion equates to a METs level between 7 and 10. Based on the Veteran’s use of continuous medications and his METs level, a 10 percent rating is indicated. Id. Another VA heart conditions examination was provided in September 2015. At that time, the Veteran still used continuous medications to treat his CAD. There was no evidence of cardiac hypertrophy, or cardiac dilatation. The Veteran reported his general health was good, he was very active, and took walks during the day. He continued to report dyspnea at a workload corresponding to between 7 and10 METs. A left ventricular ejection fraction below 50 percent and congestive heart failure were not noted. A 10 percent rating continued to be indicated. Id. On December 1, 2015, records from the Salem VA medical center show the Veteran saw his primary care provider and requested an additional echocardiogram to evaluate his CAD. This additional echocardiogram was performed in January 2016 and showed “left ventricular concentric hypertrophy of mild degree.” An additional VA heart conditions examination was provided in February 2017. The Veteran was still being treated with continuous medication. During an interview based METs test, the Veteran denied having any cardiac symptoms with any level of physical activity. There was no indication of left ventricular ejection fraction below 50 percent of congestive heart failure. However, the examiner noted cardio hypertrophy was confirmed by a January 2016 echocardiogram. Accordingly, an increased rating of 30 percent is indicated. This increase is warranted from December 1, 2015, the date the Veteran sought additional testing. Id. The Board further finds, over the entire appeal period, there is no evidence of congestive heart failure, no evidence of cardiac symptoms at METs level below 7, and no evidence of a left ventricular ejection fraction of less than 50%. A rating in excess of 30 percent is not indicated at any time over the appeal period. Id. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.