Citation Nr: 20031807 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 17-13 949A DATE: May 6, 2020 ORDER From December 18, 2013, to December 17, 2015, entitlement to a 70 percent evaluation for service-connected posttraumatic stress disorder (PTSD), but no higher, for substitution purposes is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to service connection for cause of the Veteran's death is granted. FINDINGS OF FACT 1. The most probative evidence reflects that the Veteran’s service-connected PTSD was manifested by severe symptomatology, resulting in occupational and social impairment with deficiencies in most areas, such as social relations, work, and mood, without total occupational or social impairment, throughout the entire pendency of the appeal period under consideration (from December 18, 2013, to December 17, 2015). 2. The record reflects that the Veteran died in December 2015, and the death certificate reflects that esophageal cancer was the immediate cause of death, with ischemic heart disease, and diabetes mellitus, type II, as diseases contributing to death, but not resulting in the immediate cause of death. 3. The most probative evidence reflects that the Veteran’s fatal esophageal cancer and contributory ischemic heart disease were incurred during the Veteran’s active duty. CONCLUSIONS OF LAW 1. From December 18, 2013, to December 17, 2015, the criteria for a 70 percent evaluation for service-connected PTSD, but not in excess thereof, have been met. 38 U.S.C. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2018). 2. The criteria to establish service connection for cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 1116, 1154, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1950 to July 1953. He was in receipt of a Purple Heart Medal. This matter comes to the Board of Veterans' Appeals (Board) from June 2015 and May 2016 rating decisions by Department of Veterans Affairs (VA) Regional Offices (RO) of the Agency of Original Jurisdiction (AOJ) that increased the evaluation assigned for the Veteran’s service-connected PTSD from 30 percent to 50 percent, effective from December 18, 2014, and denied the appellant’s claim to establish service connection for cause of the Veteran’s death, respectively. The Veteran expressed timely disagreement with the evaluation assigned for his service-connected PTSD, but he, unfortunately died in December 2015. His widow submitted a claim to establish service connection for cause of the Veteran’s and to be substituted for her late husband in furtherance of his appeal seeking an increased evaluation that was pending at the time of his demise. The AOJ later determined that the appellant was an appropriate substitute for the Veteran regarding his pending appeal for an increased evaluation and denied her claim to establish service connection for cause of the Veteran’s death. The appellant subsequently perfected an appeal of both issues to the Board. In January 2020, the appellant and her daughter testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the January 2020 hearing is associated with the file. Issue not on appeal In the June 2015 rating decision, the AOJ denied the Veteran’s claim for special monthly compensation at the aid and attendance level. Neither the Veteran (during his lifetime) nor the appellant expressed timely disagreement with this determination. Throughout the pendency of the current appeal, the appellant has submitted copies of earlier forms pertaining to aid and attendance completed and submitted to VA during the Veteran’s lifetime, and prior to the final denial in June 2015. It appears that these submissions were in furtherance of the present appeal rather than a petition to reopen this previously denied issue. 1. Entitlement to an evaluation in excess of 50 percent for service-connected PTSD Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart, supra. Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (West 2002); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s service-connected PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under these provisions, a 50 percent evaluation is warranted when there is 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; the Veteran’s difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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.” Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. The Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM IV, AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated DSM 5, and examinations conducted pursuant to the DSM 5 do not include GAF scores. As the Veteran’s claim for benefits was certified after August 2014, the DSM 5 criteria will be utilized in the analysis set forth below. Analysis The Veteran filed a claim for an increased evaluation for his service-connected PTSD on December 18, 2014. As the Board finds that there is an indication that the Veteran’s PTSD symptoms increased in severity and frequency within the year prior to VA’s receipt this claim, the appeal period for consideration by the Board is from December 18, 2013, to December 17, 2015 – the date of the Veteran’s death. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). With the above criteria in mind and for the reasons stated below, the Board concludes that the Veteran’s PTSD symptoms and resulting functional impairment from December 18, 2014, to December 17, 2015, most closely approximated the criteria for a 70 percent evaluation, but no higher. The evidence outlining the frequency and symptoms of the Veteran’s service-connected PTSD with anxiety during the appeal period includes VA outpatient treatment records, a VA psychiatric examination reports dated in June 2015, a March 2017 statement from the appellant, and her testimony at the January 2020 Board hearing This evidence reflects that the Veteran experiences hypervigilance, anger, an exaggerated startle response, and a dysphoric affect, as a result of this service-connected disability. While the June 2015 VA examiner opined that these symptoms resulted in mild-to-moderate functional impairment, the Board notes that the Veteran and appellant also endorsed more substantial symptoms, such as nightmares, avoidance, emotional numbing, short-term memory impairment, depression, impaired impulse control. These symptoms are consistently reported throughout the Veteran’s VA outpatient treatment; however, the VA examiner noted that the symptoms were not observed during the interview. Concerning the appellant’s reports and testimony concerning the Veteran’s psychiatric symptoms, the Board notes that the Court has firmly held that a lay person with daily contact and extensive history with the Veteran, such as the appellant in view of their more-than-60-year marriage, is competent to report matters which he experiences first-hand. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994). Accordingly, the Board notes that the appellant is competent to convey the Veteran’s PTSD symptomatology. The Board notes that the Veteran and appellant have not endorsed all or nearly all of the symptoms typically associated with a 70 percent evaluation. There was no evidence showing, for example, spatial disorientation or forgetting his own name. Nevertheless, in assigning an evaluation, the Board is not required "to find the presence of all, most, or even some, of the enumerated symptoms." See Mauerhan, supra. On the other hand, the PTSD symptoms and resulting functional impairment reported by the Veteran at the June 20915 VA examination and by the appellant in her March 2017 submission and at the January 2020 Board hearing are indicative of serious symptoms or serious impairment of social or occupational functioning. If the Board finds that the positive and negative evidence relating to an appeal are in "approximate balance," then the placement of the risk of nonpersuasion on the VA dictates a finding in favor of the claimant. Ortiz v. Principi, 274 F.3d 1361 (2001). See also, Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). Here, there is positive evidence in support of the claim and negative evidence against it. Given this, the Board finds that the evidence is in a state of "equipoise." As such, applying the benefit of the doubt, the Board concludes that the most probative evidence concerning the severity and functional impairment resulting from the Veteran’s psychiatric symptoms attributable to his service-connected PTSD most nearly approximates the criteria for a 70 evaluation throughout the pendency of the appeal period under consideration (from December 18, 2014, to December 18, 2015. Accordingly, to this extent, the benefit sought on appeal for substitution purposes is partially granted throughout the entirety of the appeal period. However, while the Veteran's PTSD did result in significant disability, the Board finds that the criteria for a 100 percent schedular evaluation are not met at any time during the appeal period. For instance, symptoms typically associated with a 100 percent evaluation for PTSD are not demonstrated. For example, there was no evidence of gross impairment in thought processes or a persistent danger of hurting himself or others. Further, as stated above, the criteria for a 100 percent schedular evaluation are PTSD symptoms resulting in total occupational and social impairment. The evidence reflects that the Veteran retired from his occupation in security due to experiencing dizzy spells and his failing eyesight – resulting in legal blindness. The record is devoid of any assertion from the Veteran or the appellant that his service-connected PTSD negatively impacted his employability, resulted in an inability to participate in a substantially gainful occupation, or resulted in his retirement. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Further, the record reflects that the Veteran’s PTSD symptoms do not result in total social impairment at any time during the appeal period. While the evidence clearly reflects that the Veteran’s PTSD symptoms caused him to struggle with periods of irritability, agitation, and isolation, there is uncontroverted evidence that the Veteran spent ample time with his wife and children, to include instances in social settings and public places. While the Board notes that the Veteran struggled to engage in social setting, such as church services, due to his PTSD and failing eyesight, there is no evidence that he experienced marital difficulties or that he was wholly unable to engage in familial and/or social relationships with others due to his PTSD symptoms. To the extent that his undertaking social situations and relationships may have been difficult due to the Veteran’s PTSD symptoms, that functional impairment is accounted for in the 70 percent evaluation which the Board has found to be warranted. In sum, because the Veteran’s PTSD symptoms do not result in total occupational or social impairment, assignment of a 100 percent evaluation is not warranted at any point during the appeal period under consideration. Based on the foregoing, and resolving all doubt in the appellant’s favor, the Board concludes that the Veteran’s PTSD symptomatology most nearly approximated the criteria for a 70 percent evaluation, but no higher, for the entirety of the appeal period (from December 18, 2013, to December 17, 2015). 38 U.S.C. § 5107 (West 2014). Lastly, the Board finds that the issue of an extraschedular rating has not been raised by the record, the Veteran, or the appellant. Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). Nonetheless, as there is a higher schedular evaluation available, extraschedular referral is not for consideration. Morgan v. Wilkie, 31 Vet. App. 162 (U.S. 2019) 2. Entitlement to service connection for cause of the Veteran's death The appellant seeks Dependency and Indemnity Compensation (DIC) benefits, and the regulations provide that such benefits are payable to the surviving spouse, child, or parents of a veteran if the veteran's death was from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. To establish service connection for the cause of a veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312 (b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided, or lent assistance to producing death, for example when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). Analysis As noted elsewhere in this decision, the Veteran died in December 2015. The death certificate lists adenocarcinoma of the esophagus as the immediate cause of death, and ischemic heart disease and diabetes mellitus, type II, as diseases contributing to his death, but not resulting in the immediate cause of death. The record does not show, and the appellant does not contend that any of the diseases listed on the Veteran’s death certificate were subject to service connection during the Veteran’s lifetime; however, she contends that the Veteran incurred in-service exposure to toxins and noxious chemicals while stationed in Korea, and that these exposures resulted in development of esophageal cancer and ischemic heart disease, ultimately leading to his demise. Although the Veteran’s service records are unavailable for review due to a fire that occurred at the National Personnel Records Center (NPRC) in St. Louis, Missouri, in 1973, the available evidence confirms the Veteran was stationed in Korea from November 1950 to November 1951. In support of her appeal, the appellant has submitted several research and medical treatise articles discussing in-service chemical exposure for soldiers stationed in Korea during this timeframe, and the resulting impact on their longterm health. The appellant also submitted a November 2016 statement from a VA physician who provided the Veteran medical treatment during his lifetime. In this statement, the VA physician stated that, based on the Veteran’s service in Korea from 1950 to 1951, he was likely exposed to several toxic chemicals, such as aldrin, dieldrine, lindane, mevinophos, and malathion. The physician alluded to the medical treatise evidence previously submitted by the appellant and note that the medical literature supported the notion that the above-noted chemicals are known to cause cancer and heart disease in exposed individuals. Ultimately, the VA physician opined that the Veteran’s in-service exposure to these toxic chemicals while stationed in Korea contributed to his fatal esophageal cancer and contributory ischemic heart disease. The Board finds the November 2016 opinion to carry significant probative weight concerning whether the Veteran’s immediate and contributory causes of death (esophageal cancer and ischemic heart disease, respectfully) were related to his in-service exposure to toxic chemicals while stationed in Korea. In particular, the VA physician alluded to the medical treatise evidence submitted by the appellant as medical literature in furtherance of the offered opinion. What the statement, itself, may be lacking in rationale is provided within the medical treatise evidence. Bloom v. West, 12 Vet. App. 185, 187 (1999). Further, the Board finds it pertinent that the Veteran’s file is devoid of any evidence contrary to the November 2016 opinion. There is no evidence showing that the Veteran’s fatal esophageal cancer or long-standing ischemic heart disease were due to other causes. Moreover, while an AOJ employee attempted to obtain clarification of the November 2016 via e-mail from the VA physician and superiors, no response is evidenced in the record. It is unclear why another VA opinion was not sought and/or obtained by the AOJ; however, the Board concludes that the November 2016 opinion is adequate for the purpose of readjudicating the appellant’s appeal, and there is no evidence to the contrary. In light of above, the Board concludes that the most probative evidence of record reflects that the Veteran’s fatal esophageal cancer and contributory ischemic heart disease were at least likely as not the result of his in-service exposure to toxic and noxious chemicals while stationed in Korea. Accordingly, entitlement to service connection for cause of the Veteran’s death is warranted. 38 C.F.R. §§ 3.102, 3.312 (2018). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.