Citation Nr: 20009955 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 08-07 779 DATE: February 6, 2020 ORDER Entitlement to a rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD), prior to October 10, 2016 is granted. REMANDED Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is remanded. FINDING OF FACT For the period prior to October 10, 2016, the Veteran’s PTSD has not resulted in symptoms of a greater severity than occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW For the period prior to October 10, 2016, the criteria for a rating of 70 percent, but no greater, for PTSD have been met. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1969 to June 1973, and he was awarded a Purple Heart and Combat Infantryman Badge for his service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2006 and June 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction resides with the Houston, Texas RO. In November 2013, the Veteran testified during a videoconference Board hearing before the undersigned. A transcript of the hearing has been associated with the claims file. In March 2014, the Board assumed jurisdiction of a claim for entitlement to a total disability rating based individual unemployability due to service-connected disabilities (TDIU) pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded, in pertinent part, this TDIU claim as well as a claim for an increased evaluation for PTSD and service connection for hypertension. A March 2017 rating decision increased the evaluation for the Veteran’s service-connected PTSD to 70 percent, effective October 10, 2016. In June 2018, the Board denied, in pertinent part, the Veteran’s claim of entitlement to service connection for hypertension; and a rating in excess of 50 percent for the period prior to October 10, 2016, and a rating in excess of 70 percent thereafter for his PTSD; additionally, the Board remanded the Veteran’s claim for a TDIU for further development. The Veteran then appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC). The Veteran’s attorney limited the appeal to the issues of entitlement to service connection for hypertension, and to a rating greater than 50 percent for posttraumatic stress disorder (PTSD) prior to October 10, 2016. See Pederson v. McDonald, 27 Vet. App. 276, 285 (2015); Breeden v. Principi, 21 Vet. App. 165, 170 (2007) (per curiam order). In an April 2019 Joint Motion for Partial Remand, the CAVC vacated, in part, the Board’s decision, finding that remand was warranted because the Board failed to adequately address exposure to herbicide agents as a theory of entitlement for the claim of service connection for hypertension, and provided inadequate reasons and bases in analyzing the severity of the Veteran’s PTSD symptoms. With regard to the claim for a TDIU, the Board notes that the TDIU claim is currently being developed by the RO pursuant to the Board’s June 2018 remand directives. Although the Board acknowledges that the Veteran’s attorney has indicated that development on this issue has been completed and the Board should reassume jurisdiction over the issue of a TDIU as part and parcel of the claim for an increased rating for PTSD, the Board declines to address the TDIU issue in this decision. Adjudicating the claim for a TDIU before the RO has completed its development would be premature and potentially prejudicial to the Veteran. The Board notes that following issuance of the supplemental statement of the case (SSOC) by the RO, the Veteran, through his attorney, submitted new evidence, accompanied by a waiver of Agency of Original Jurisdiction (AOJ) consideration of the new evidence pursuant to 38 C.F.R. § 20.1304 (2018). Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to October 10, 2016. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under the General Rating Formula for Mental Disorders, in pertinent part, a 30 percent rating applies to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating applies to 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 compete 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 applies to 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); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a psychiatric disorder causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran’s psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency must assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Id. at 442. The Veteran’s actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). After a review of the record, the Board finds that prior to October 10, 2016, the impact of the Veteran’s service-connected PTSD on his occupational and social functioning warrants a 70 percent disability rating, and no higher. 38 C.F.R. § 4.130, DC 9411. A January 2011 VA examination shows that the Veteran reported significant depression and anxiety; additionally, the Veteran reported experiencing nightmares and flashbacks at least once or twice per month. The Veteran also endorsed symptoms of anger, irritability, hypervigilance, difficulty sleeping, and suicidal thoughts without an intent or plan. The Veteran indicated that he enjoyed being with this girlfriend of 10 years. During the mental status evaluation, the Veteran’s appearance was casual but otherwise appropriate and he was oriented to time, place, person, and purpose. His behavior was withdrawn, and his mood was sad and angry with affect appropriate to mood, but not necessarily the situation. Communication appeared intact and goal directed; his speech was normal in rate and volume, and his concentration was described as fair. The Veteran described ongoing suspiciousness, hypervigilance, and paranoia, but there was no history of delusions, hallucinations, or obsessive-compulsive thoughts or rituals. The Veteran’s thought processes were somewhat slow but intact, and there was no impairment of judgment, or memory. There was no suicidal or homicidal thinking noted. The Veteran had some difficulty focusing and concentrating, appearing as though his ability to follow through with commands was poor. The examiner indicated that the Veteran was poorly socialized; he isolated and withdrew from others; however, he was mentally capable of managing his own benefit payments, was able to care for his own basic personal needs, and did not pose any threat of persistent danger or injury to himself or others. After reviewing the Veteran’s claims file, his self-reported medical history, and current symptoms, the examiner concluded the Veteran had chronic, ongoing PTSD. A September 2011 letter from the Veteran’s treating provider indicated that the Veteran had severe difficulty sleeping due to nightmares at least three times per week. The Veteran isolated himself, and he was not able to be around a large number of people; his only source of contact with others was “the group” and his girlfriend. The overall findings however were not materially different from those reported on the 2011 VA examination. The provider indicated that the Veteran continued to have severe symptoms of PTSD and he would be unable to find employment due to the severity of his symptoms. In a statement received in November 2013, the Veteran reported that he stayed away from people due to anger, anxiety, and nervousness, indicating that he only went out to go to the grocery store and the bank. He indicated that he would sometimes go weeks without talking to anyone other than his cats and dogs. He reported that he often thought about suicide although he had never acted on it. Additionally, the Veteran indicated that he suffered from constant depression, manifested by feelings of hopelessness and paranoia, constant anxiety, anger when driving, and he often missed appointments. The Veteran reported that he has been self-employed since the 1990s. Finally, the Veteran indicated that he “once saw somebody jumping the fence into [his] property” and he grabbed his rifle and “locked and loaded on a kid”. He indicated that he intended to shoot him until he “came to his senses”. At his November 2013 Board hearing, the Veteran reiterated experiencing symptoms of difficulty sleeping, nervousness and anxiety, depression, isolation, paranoia, and anger. The Veteran additionally noted that he had thoughts of suicide that year when his neighbor committed suicide. The Veteran also indicated that he left his wife and children approximately eight years prior and did not communicate with them; however, he currently had a girlfriend who was supportive. He indicated that he had friends, but he did not socialize, except to attend his PTSD meetings. Finally, the Veteran indicated that he was fired from his last job due to his temper; although he also noted that he was laid off in 1998, being told that he was no longer needed. A December 2013 statement from the Veteran’s girlfriend and former coworker indicates that they worked together “on and off” for the past twelve years. The statement indicates that they would work through the night to avoid crowds; specifically, she indicated that the Veteran preferred isolation and when around crowds, he often became agitated and temperamental. Additionally, the Veteran did not work well with others, including clients, due to his suspiciousness. The statement also describes symptoms of hypervigilance, easy startle, and paranoia. Finally, the statement notes that the Veteran had been fired or laid off due to his anger and violent behavior, and he had not worked in the last eight years. VA outpatient records show continued monitoring of the Veteran’s PTSD between 2011 and 2016. In addition to PTSD symptoms, the Veteran also appeared to have a comorbid diagnosis for bipolar disorder. These records show that while the Veteran continued to struggle with depression, anger and irritability, suicidal thoughts, isolation, and suspiciousness and was also dealing with painful memories brought on by the loss of his parents and a beloved pet. However, these records also show he was getting increasing recognition for his work as a painter/artist, continued to have a generally positive and supportive relationship with his long-time girlfriend, and enjoyed several recreational/leisure pursuits including painting, photography, playing guitar, and reading. It was also noted that he benefited and responded well to his medication and therapy. Multiple mental status evaluations in his treatment records consistently show the Veteran was alert, fully oriented, and appropriately groomed and dressed. He was cooperative, attentive, and related appropriately with his healthcare providers. He was often described as moderately anxious and mildly depressed. His speech was generally normal, and his thought processes were logical and goal directed with no evidence of hallucinations or delusions or cognitive impairment. His thought content was within normal limits, and while he reported occasional thoughts of suicide, he had no plans or intent to end his life. His insight and judgment were generally noted as fair. At a July 2016 VA examination, the Veteran noted little change in his personal history since his last evaluation in 2011. Noted symptoms included suspiciousness and chronic sleep impairment. The examiner made an Axis I diagnosis of PTSD and concluded that the Veteran’s PTSD symptoms were most closely manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. No other mental disorder was diagnosed. The examiner also noted the Veteran was fully employable and that his mental diagnosis did not prevent him from working; no functional impairment from PTSD on the Veteran’s occupational status was noted. The Veteran was pleasant and cooperative; well-groomed with good eye contact; his speech was normal rate and volume; mood was euthymic; affect was normal; his thought process was coherent and logical. He denied suicidal and homicidal ideation and hallucinations. His judgment and insight were noted as good. The Veteran reported that he was in a long-term relationship and was close with his two grown children; he indicated that he was still isolative and vigilant in public; he avoided crowds and was upset at racism in the world because he was ostracized in military; he denied any severe depression and suicidal ideations. In a private evaluation, conducted in November 2019, the provider opined that, due to symptoms of anger, irritability, trust issues, homicidal and suicidal ideation, for the period from September 2010 to October 2016, the Veteran’s PTSD has caused him occupational and social impairment with deficiencies in most areas. After a review of the evidence, the Board concludes that the weight of the evidence demonstrates that the Veteran has shown occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating for the period on appeal. In this regard, the Board finds that the evidence reflects that, while his symptoms wax and wane, the Veteran consistently reported symptoms of depression, anxiety, paranoia, sleep difficulty, isolation, anger, and suicidal ideation. Thus, the Board will afford the Veteran with the benefit of the doubt and find that a single 70 percent rating applies throughout the appeal period. The evidence does not, however, demonstrate a degree of occupational or social impairment consistent with a rating greater than 70 percent at any time. In this regard, the Board notes that the evidence does not demonstrate that the Veteran experienced symptoms of 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 living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name at any time during the period on appeal. Rather, the evidence consistently reflects that the Veteran was oriented; his speech was generally normal; thought processes were logical with no evidence of hallucinations, delusions, or cognitive impairment; insight and judgement were fair to good, and he was able to care for his own basic personal needs. The Board has considered the Veteran’s reports of suicidal ideation and homicidal ideation and find that these occurrences do not rise to the level of frequency, duration, or severity to be considered a persistent danger to himself or others. In this regard, during the period on appeal, while the evidence shows that the Veteran frequently thought about death or suicide, he did not have a plan or intent to act on it, nor did he have a history of attempts. Additionally, although the record reflects that the Veteran occasionally thought about harming others, there is no evidence indicating that he ever acted on this or was otherwise violent towards others. Thus, based on the foregoing, the Board finds that this does not raise to the level of a persistent danger to himself or others warranting a 100 percent disability rating. The Board notes that while the Veteran reported that he has not worked since the late 1990s, the evidence indicates that the Veteran, as an artist and painter, was still painting, although he no longer actively tried to sell his work. Clinicians consistently found the Veteran to be able to handle money, pay bills, and manage his own financial affairs. In July 2016, an examiner found that the Veteran’s symptoms resulted in occupational impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Board notes that this characterization of the Veteran’s symptoms is consistent with a 30 percent disability rating. Additionally, treatment records indicate that the Veteran maintained employment as a painter, indicating that it was going well despite his PTSD symptoms. Although the evidence reflects that the Veteran isolated and worked better alone, there is nothing in the record demonstrating that the Veteran suffered from total occupational impairment. The Board acknowledges that in September 2011, the Veteran’s treating physician indicated that the Veteran would be unable to find employment due to the severity of his PTSD symptoms. While this observation is consistent with a degree of occupational impairment associated with a 100 percent rating, the Board places relatively little probative weight in the finding. The provider does not explain this conclusion. Furthermore, the Board finds that clinicians have otherwise failed to state that the Veteran suffered from such a degree of occupational impairment. While the Board places some probative value on the private provider’s opinion, the Board has considered this evidence in the context of the totality of the record, including the Veteran’s psychiatric treatment records, examination reports, and lay statements. As noted above, the Board cannot find that the weight of the totality of this evidence supports a rating in excess of 70 percent. Thus, despite the physician’s September 2011 opinion suggesting that the Veteran was totally occupationally impaired, the Board finds that the weight of the evidence is against a finding that the Veteran suffered from total occupational and social impairment associated with a 100 percent rating. Nevertheless, the Board’s determination does not diminish the seriousness of the occupational and social impairment that the Veteran has experienced as a result of his psychiatric symptoms. Indeed, the record shows that the Veteran has reported experiencing depression, anxiety, paranoia, sleep difficulty, isolation, anger, and suicidal ideation. The Veteran’s PTSD symptoms doubtlessly have a significant impact on his occupational functioning, and it is because of these symptoms that the Board has awarded the Veteran a 70 percent rating. Notably, a 70 percent rating also contemplates inability in establishing and maintaining effective work relationships, which was suggested by the Veteran’s girlfriend in a December 2013 statement. Accordingly, while the Board finds that PTSD warrants a 70 percent rating, it also finds that the weight of the evidence is against the assignment of a rating greater than 70 percent at any time. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Hypertension The Veteran, through his attorney, contends that he is entitled to service connection on a direct basis for hypertension as a result of exposure to herbicide agents while serving in Vietnam. Specifically, the Veteran’s attorney asserts that, relying on medical research from the National Academy of Sciences, a connection exists between exposure to herbicide agents and hypertension. The Board notes that the RO has conceded that the Veteran was exposed to herbicide agents during his service in Vietnam. VA regulations provide that, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases, however, do not presently include hypertension. See 38 C.F.R. § 3.309(e). Nevertheless, although hypertension is not presently among the delineated diseases associated with herbicide agent exposure, service connection for claimed residuals of exposure to herbicide agents may be established with evidence of actual causation. 38 C.F.R. § 3.309(e); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran was afforded a VA examination in July 2016, which provides a diagnosis of hypertension. The examination notes that the date of diagnosis was approximately the late 1990s to the early 2000s. Additionally, his medical records show that the Veteran was diagnosed with PTSD in July 2001, and he was already on blood pressure medications at that time. Therefore, the examiner opined that the Veteran’s hypertension was less likely than not incurred in or caused by the claimed in service injury, event, or illness because his blood pressure reading at separation from the military was 124/74, and he did not receive a diagnosis of hypertension until more than 20 years after service. The examiner also indicated that it was less likely than not that his hypertension was proximately due to or aggravated by his service-connected PTSD. The examiner reasoned that while there are multiple risk factors and contributing factors for developing hypertension, PTSD is not among these; moreover, the Veteran’s blood pressure was under good control with medications as of July 2016. It does not appear that the VA examiner considered the Veteran’s in-service exposure to herbicide agents in rendering this opinion, as no related discussion was provided. Additionally, although the Veteran’s attorney failed to submit any evidence with respect to this issue, the Board acknowledges that the National Academy of Sciences (NAS) has placed hypertension in the category of “limited or suggestive evidence of an association” with exposure to herbicides. See e.g., Health Effects Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540, 32,549 (June 8, 2010). In November 2018, the NAS moved hypertension to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category. The sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to Agent Orange. See Veterans and Agent Orange: Update 2018. The Board notes that even though the NAS has found that there is “sufficient” evidence of an association between hypertension and exposure to herbicides, this does not provide evidence that this Veteran’s hypertension is caused by exposure to herbicides. Evidence suggesting an association is not the same as evidence of causation. Nonetheless, the Board finds that the NAS study raises “an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service…” which warrants a new VA medical opinion addressing this issue. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The matters are REMANDED for the following action: Obtain an addendum opinion to determine the nature and etiology of the Veteran’s hypertension. The examiner should review the entire claims file and note such review in the examination report. A comprehensive rationale must be provided for the opinions rendered. (a.) The VA examiner should address whether the Veteran’s hypertension is at least as likely as not (50% probability or greater) related to the Veteran’s period of active service, to include his exposure to herbicides in Vietnam. The Veteran’s exposure to herbicide agents in Vietnam has been conceded. (b.) If the examiner cannot provide the requested opinions without resorting to speculation, he or she should indicate such and provide a supporting rationale as to why the opinion cannot be made without resorting to speculation. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.