Citation Nr: 20045274 Decision Date: 07/08/20 Archive Date: 07/08/20 DOCKET NO. 17-35 288 DATE: July 8, 2020 ORDER Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure is denied. Entitlement to service connection for renal insufficiency (claimed as severe kidney problems), to include as due to herbicide agent exposure is denied. Entitlement to an initial rating of 100 percent for service-connected posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for major depressive disorder (claimed as anxiety, depression) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability is remanded. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam or its offshore waters during the presumptive period, and there is no competent evidence that the Veteran was exposed to herbicide agents during his active service. 2. The Veteran’s diabetes mellitus is not related to his active service. 3. The Veteran’s renal insufficiency is not related to his active service. 4. The Veteran’s service-connected PTSD is manifested by symptoms productive of total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for type I diabetes mellitus, to include as due to herbicide agent exposure, have not been met. §§ 1101, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for renal insufficiency (claimed as severe kidney problems), to include as due to herbicide agent exposure, have not been met. §§ 1101, 1112, 1131; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for entitlement to a rating of 100 percent for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1976 to October 1978. This appeal comes to the Board of Veterans’ Appeals (Board) from April 2014 and March 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing held before the undersigned Veterans Law Judge. A transcript of the hearing has been made available in the record. During the hearing, the Veteran’s request for 30 additional days after the hearing to submit additional evidence was granted. Moreover, initial review by the agency of original jurisdiction (AOJ) of evidence submitted after the June 2017 statement of the case (SOC) was waived. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure. 2. Entitlement to service connection for renal insufficiency (claimed as severe kidney problems), to include as due to herbicide agent exposure. As an initial note, the RO, to this point, has characterized the Veteran’s claim for service connection for diabetes as one for Type I diabetes mellitus. The Veteran’s claim form reflects that he sought service connection for Type II diabetes rather than Type I. His VA treatment records initially reflected that he was diagnosed with Type I, then later that was changed to Type II. Throughout the analysis that follows, the Board shall simply refer to the Veteran’s claim as one for service connection for diabetes. The Veteran asserts that his diabetes and renal insufficiency are due to his exposure to herbicide agents during his time in service. The Veteran claims that the ship (Myles C. Fox) that he was on from September 1976 to March 1977 went into Vietnam waters not too distant past the Vietnam era. The Veteran contends that he saw Agent Orange dripping off of things. See Hearing Transcript February 2020. According to 38 C.F.R. § 3.307(a)(6)(iii), a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed ot any such agent during that service. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. There is no question as to whether the Veteran has been currently diagnosed with renal insufficiency or diabetes, regardless of the type. The Veteran’s VA treatment records show that the Veteran’s has been diagnosed with such diseases. The evidence of record does not support a finding that the Veteran was in Vietnam. The Veteran did not begin his active service until after the end of the Vietnam Era and after the presumptive period as noted above; there is no contention that he had any earlier service. Quite simply, the Veteran’s service records and DD-214 do not show presence in Vietnam or any other place covered by the herbicide agent presumption during the presumptive period. The fact that the Veteran did not serve during the presumptive period is not necessarily dispositive in determining that his diabetes and kidney disability are not related to his active service. That said, there is no competent evidence that the Veteran was otherwise exposed to herbicide agents. As reflected by his hearing testimony, the Veteran’s basic contentions are that his ship had gone into the territorial waters of the Republic of Vietnam, and that the ship was so damaged by its residual exposure that it had to be scrapped. The Veteran also contended that his ship performed secret missions off of the coast of Vietnam following the end of American involvement in the conflict. The Veteran contends that he witnessed herbicide agents dripping off of the vegetation on the land. The Board does not find these contentions sufficient to support that the Veteran was actually exposed to herbicide agents during his active service. For each contention, there is no evidence beyond the Veteran’s bald statements supporting such incidents. As to the first contention, even assuming that the Veteran’s ship had been earlier exposed to herbicide agents prior to his service, there is no showing that the Veteran is competent to identify the lingering effects of such exposure, to include the effects that the exposure would have on the ship’s infrastructure or that any such chemicals would remain on the ship and be hazardous to personnel long after such exposure. As the Board finds that the Veteran is not competent to offer this opinion, it explicitly refrains from commenting on his credibility with regard to this statement. As to the contention that the Veteran’s ship was on secret missions and that the Veteran saw herbicide agents dripping off of the vegetation, the Board finds that the Veteran’s statements and descriptions are not credible. To believe such would require the Board to find that after the formal cessation of hostilities between this country and Vietnam, the Veteran’s ship was nevertheless sent on unnamed secret missions for reasons not disclosed or described by the Veteran, and that during such missions, America was further continuing its defoliation efforts. These contentions, on their face, lack credibility. The Board does not find that seeking any additional corroborative research on these matters would result in any possibility of substantiating the Veteran’s contentions. The Board finds no competent or credible evidence that the Veteran was exposed to herbicide agents during his active service. Other than alleging in-service exposure to herbicide agents, the Veteran has not made any assertions that his renal insufficiency or type I diabetes mellitus began in service. Even if he did, the Veteran’s VA treatment records are silent for any signs, symptoms, complaints, or treatment for renal insufficiency or type I diabetes mellitus. Moreover, there is no other evidence of a nexus between the Veteran’s current diseases and his military service. The Veteran was not afforded a VA examination for his renal insufficiency or type I diabetes mellitus to determine the nature and etiology of his conditions because the evidence was not sufficient to trigger VA’s duty to assist. Particularly, there was no indication that the Veteran had signs of type I diabetes or renal insufficiency while in service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board has considered the Veteran’s lay statements that his current diseases are related to his exposure to herbicide agents. The Veteran is competent to report signs or symptoms of a disease; however, the Veteran is not competent to opine to an etiology of a disease. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, as stated above, the Veteran was not exposed to herbicide agents. Increased Rating 3. Entitlement to an initial rating in excess of 50 percent for service-connected PTSD. Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (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). Currently, the Veteran’s service-connected PTSD is rated at 30 percent from December 27, 2013, under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under these criteria, a 30 percent rating is warranted where the psychiatric condition produces 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted where the psychiatric condition produces 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 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 worklike setting); inability to establish and maintain effective relationships. Id. A 70 percent rating is warranted where the psychiatric condition produces 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where the psychiatric condition results in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Id. In July 2014, the Veteran submitted a Disability Benefits Questionnaire (DBQ) for his service-connected PTSD. Dr. E.M.T. opined that the Veteran was unable to work and felt alienated from others. The physician opined that the Veteran’s PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and/or mood. The Veteran’s symptoms included depressed mood, anxiety, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, impairment of short and long term memory, difficulty in understanding complex commands, difficulty in establishing and maintaining effective work and social relationships, neglect of personal appearance and hygiene, and suicidal ideation (the Veteran had made 3 attempts to commit suicide). In July 2014, the Veteran had a private psychosocial assessment and employability evaluation performed by Dr. E.M.T., a licensed psychologist. The psychologist reported that the Veteran had been married twice but was currently divorced. He did not have any biological children. The Veteran last worked in 2012 at a pickle factory; his job was in sanitation. He was fired due to losing too much time due to medical problems. Between 1978 and 2011, the Veteran held 10 different jobs. The Veteran was self-employed in lawn care for about 10 years. Dr. E.M.T. noted that the Veteran did not possess any transferrable skills to sedentary work. Currently, the Veteran felt emotionally numb and void of feeling. He had difficulty trusting others, no friends, and rocky interpersonal relationships. He reported that he attempted suicide three times. The Veteran had frequent bouts of irritability and outbursts of anger, not always related to issues at hand. These symptoms caused severe social, personal, and occupational impairment: difficulty concentration, generalized anxiety with two to three panic attacks per week, bouts of short- and long-term memory loss, insomnia and other sleep disturbance, bouts of moderately severe depression, generalized anxiety with two to three panic attacks per week, and overwhelming feelings of anger and sorrow with crying spells. The psychologist diagnosed the Veteran with PTSD and noted that the Veteran was unable to work. The Veteran was not capable of sustaining substantial gainful work activity. A VA report of hospitalization revealed that the Veteran stayed in the hospital for 1 day in April 2014 due to his psychiatric condition. In February 2015, the Veteran was afforded a VA examination for his PTSD. The Veteran was diagnosed with PTSD and anti-social personality disorder. The Veteran’s anti-social behavior pattern resulted in destruction of relationships, lack of a consistent work history, manipulativeness, attention-seeking behavior, law violations, and externalization of the blame. The VA examiner concluded that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran was divorced without any kids. He had 2 girlfriends that ended after a few years. The most recent relationship ended 2 years ago after she took out a protective order against him for his threats to her and her family. His health issues caused his girlfriend to leave him as well. The Veteran’s symptoms included depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and suicidal ideation. In March 2015, the Veteran had a DBQ, conducted by Dr. E.M.T., for his PTSD. The licensed psychologist noted that the Veteran’s PTSD caused total occupational and social impairment. The Veteran’s symptoms included depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, gross impairment of thought processes, suicidal ideation (3 attempts), inability to maintain and establish relationships, and neglect of personal appearance and hygiene. In November 2015, the Veteran was afforded a VA examination for his PTSD. The Veteran was diagnosed with PTSD, alcohol use disorder, and major depressive disorder. The VA examiner noted that it was not possible to differentiate the symptoms between each diagnosis. The VA examiner concluded that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran continued to have flashbacks. He was both withdrawn and had secondary depression. The Veteran had difficulty making it out of the house; he felt scared of being around others. He did nothing for fun and had no friends. He locked himself inside his home for many days. He was afraid someone might come by and rape him. The Veteran reported four psychiatric hospitalizations and continued to have suicidal ideation. However, he did not have a current intention or plan to self-harm. The Veteran’s symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, inability to establish and maintain effective relationships, and suicidal ideation. Upon behavioral observation, the Veteran appeared casually dressed. He did not demonstrate inappropriate behaviors. The VA examiner concluded that the Veteran would struggle to work with others considering the severity of his symptoms. Another VA treatment report revealed that the Veteran was hospitalized due to his major depressive disorder from January 18, 2015, to January 24, 2015. Further, the Veteran was hospitalized again in October 2017 from suicidal ideation. Again, the Veteran was hospitalized in September 2018 for suicidal ideation. In February 2020, the Veteran submitted a letter from a VA psychiatrist, Dr. K.P. Dr. K.P. stated that she had been treating the Veteran since 2014. The Veteran was diagnosed with posttraumatic stress disorder, severe and chronic, due to military sexual trauma. Additionally, the Veteran had been diagnosed with major depression, recurrent and severe, with psychosis due to PTSD. The Veteran has had approximately 20 psychiatric hospitalizations and multiple suicide attempts. The psychiatrist opined that due to the severity of the symptoms, it was her opinion that the Veteran was unable to be employed even in a part-time capacity due to the severity of his mental illness. After careful review, the Board finds that for the entire appeal period, the Veteran’s service-connected PTSD most closely approximates the schedular criteria for the assignment of a disability rating of 100 percent under Diagnostic Code 9411. The evidence of record shows total occupational and social impairment. A review of the record shows that the Veteran suffered from suicidal ideation (with multiple attempts and hospitalizations), depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, gross impairment of thought processes, overwhelming feelings of anger and sorrow with crying spells, and difficulty or inability to establish and maintain effective relationships. On his November 2015 VA examination, the Veteran reported that he had had difficulty making it out of the house because he felt scared of being around others. He did nothing for fun and had no friends. He locked himself inside his home for many days. He was afraid someone might come by and rape him. VA treatment records showed that he had numerous psychiatric hospitalizations and suicide attempts. As for the Veteran’s social life, the Veteran had been married twice but was currently divorced. He did not have any biological children. The Veteran did not have any friends. The Veteran last worked in 2012 at a pickle factory; his job was in sanitation. According to the Veteran, he was fired due to losing too much time due to medical problems. Moreover, on his March 2015 DBQ, the Veteran’s licensed psychologist concluded In February 2020, the Veteran’s VA psychiatrist, Dr. K.P., opined that the Veteran’s psychiatric symptoms were so severe that the Veteran was unable to be employed even in a part-time capacity due to the severity of his mental illness. The Board notes that the Veteran has had severe difficulty throughout the appeal period with his psychiatric symptoms. Therefore, the Board finds that a rating of 100 percent is warranted for the Veteran’s service-connected PTSD with major depressive disorder. (Continued on next page) REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran contends that he currently suffers from bilateral hearing loss and tinnitus related to his in-service noise exposure. Though there is no formal evidence of a diagnosis for either condition, such is not a prerequisite for seeking a VA examination. Instead, only evidence of persistent symptoms of a disability are required with regard to the current disability criterion of the framework for ordering an examination. As the Veteran is competent to testify as to symptoms of hearing loss and tinnitus (even if not to supply a formal diagnosis of bilateral hearing loss), the Board finds that his testimony meets that low bar. Considering his testimony regarding his in-service noise exposure and his onset of symptoms, the Board finds that each criterion for a VA examination have been met. At this point, the Board does not make any findings as to the credibility of the Veteran with regard to the onset of his symptoms. The Board simply finds that the low bar to order an examination have been met. 3. Entitlement to service connection for major depressive disorder (claimed as anxiety, depression) is remanded. During a November 2015 VA examination, the Veteran was diagnosed with major depressive disorder. In a February 2020 letter, Dr. K.P. opined that the Veteran had major depression due to PTSD. However, the VA treatment records do not make it clear as to whether the Veteran’s diagnosed depressive disorder is a symptom of PTSD or a separately diagnosable psychiatric condition. A remand is warranted for a medical opinion to clarify the nature and etiology of the Veteran’s major depressive disorder. 4. Entitlement to a TDIU due to a service-connected disability is remanded. The Veteran’s claim for TDIU is currently intertwined with the issue of service connection. Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Therefore, further consideration of the claim for TDIU must be deferred. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to determine the nature and possible relationship to service of his claimed hearing loss and tinnitus. After examining the Veteran and reviewing the claims file, the examiner is to state whether it is at least as likely as not that any identified bilateral hearing loss or tinnitus are related to the Veteran’s active service, to include his claimed history of in-service noise exposure. 2. Obtain a VA medical opinion to determine the nature and etiology of the Veteran’s major depressive disorder. If a medical opinion cannot be rendered without a VA examination, the Veteran should be scheduled for a VA examination. A copy of this remand and claims file should be reviewed. The VA examiner must address the following: (a.) Whether the Veteran’s major depressive disorder is a separately diagnosable disability from the Veteran’s already service-connected PTSD? If so, please list the symptoms of the Veteran’s major depressive disorder and distinguish how the symptoms are different of those exemplified from PTSD. (b.) Whether it is at least as likely as not that the Veteran’s major depressive disorder is related to his military service, to include military sexual trauma? (c.) Whether it is at least as likely as not that the Veteran’s major depressive disorder is proximately due to, the result of, or aggravated by his service-connected PTSD? The VA examiner should discuss the February 2020 opinion provided by the Veteran’s psychiatrist, Dr. K.P. A sufficient rationale for all opinions must be provided. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, 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.