Citation Nr: 20056428 Decision Date: 08/26/20 Archive Date: 08/26/20 DOCKET NO. 18-05 219 DATE: August 26, 2020 ORDER The issue of service connection for mild pulmonary valve stenosis is dismissed. The issue of a higher rating for coronary artery disease status post stent placement, currently rated as 60 percent disabling, is dismissed. The issue of a higher initial rating for atrial fibrillation, currently rated as 30 percent disabling, is dismissed. The issue of a compensable rating for post-surgical scars mid-chest, is dismissed. The issue of a compensable rating for residual scars after right leg vein harvest is dismissed. The issue of a compensable rating for bilateral hearing loss is dismissed. A 70 percent rating, but no higher, for an unspecified trauma disorder with anxiety and mixed mood, is granted. A TDIU is granted. REMANDED The issue of a compensable rating for peripheral venous insufficiency, right lower extremity, is remanded. The issue of a compensable rating for peripheral venous insufficiency, left lower extremity, is remanded. FINDINGS OF FACT 1. On January 14, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the issues of service connection for mild pulmonary valve stenosis; a higher rating for coronary artery disease status post stent placement; a higher initial rating for atrial fibrillation; a compensable rating for post-surgical scars mid-chest; a compensable rating for residual scars after right leg vein harvest; and a compensable rating for bilateral hearing loss, is requested. 2. The Veteran’s unspecified trauma disorder with anxiety and mixed mood is manifested by occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood. It is not manifested by total occupational and social impairment. 3. The Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issues of service connection for mild pulmonary valve stenosis, a higher rating for coronary artery disease status post stent placement, a higher initial rating for atrial fibrillation; a compensable rating for post-surgical scars mid-chest, a compensable rating for residual scars after right leg vein harvest, and a compensable rating for bilateral hearing loss by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for a disability evaluation of 70 percent, but no higher, for the Veteran’s service-connected unspecified trauma disorder with anxiety and mixed mood have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for a total disability rating due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to April 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from October 2013 and January 2018 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in January 2020. The issues of service connection for mild pulmonary valve stenosis, a higher rating for coronary artery disease status post stent placement, a higher initial rating for atrial fibrillation, a compensable rating for post-surgical scars mid-chest, a compensable rating for residual scars after right leg vein harvest, and a compensable rating for bilateral hearing loss are dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant has withdrawn these issues and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issues, and they are dismissed. A 70 percent rating, but no higher, for an unspecified trauma disorder with anxiety and mixed mood, is granted. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where 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. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected unspecified trauma disorder with anxiety and mixed mood has been rated by the RO under the provisions of Diagnostic Code 9411. Under this regulatory provision, a 50 percent is warranted if the Veteran experiences 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 rating is warranted for 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. Id. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran underwent a VA examination in January 2018. He reported that he had been married for 26 years. He stated that this was his 4th marriage and reported that the relationship was “great.” He reported that he enjoyed fishing and “tinkering” and fixing items for people. He had seven children. He reported a good relationship with three of them and a distant relationship with four of them. He stated that he had a few friends but was not a member of any organizations, and preferred more solitary activities. He stated that during his career, he had agitation at work but no aggressive behaviors. He denied any history of job terminations or work-related admonishments. Upon examination, the Veteran was well-groomed and casually dressed. He did not present with suicidal ideations and/or intent to harm others. He reported his mood as “good.” He reported no change in sleep pattern. He reported his appetite had decreased. His affect appeared congruent with verbal and nonverbal communication. He endorsed symptoms of depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; and disturbances of motivation and mood. The Veteran was oriented to all spheres, and he was relatively calm and responsive. Speech was of normal rhythm and content. He maintained focus on topics and responded appropriately to questions. There was no evidence of a formal thought disorder. Insight and judgment were grossly intact. Fund of information was adequate. There were no gross remote memory impairments. He denied active suicidal ideations, planning, or intent. Protective factors were identified. The Veteran was deemed capable of managing his financial affairs. The examiner opined that his symptoms were manifested by occupational and social impairment with reduced reliability and productivity The Veteran underwent another VA examination in February 2020. He reported that he was then living with his wife who he had been married to since 1991. He noted that they got along “good” and added that she told him that he had anger problems and that “things set me off.” He stated that of his seven children, three of them do not talk to him. He stated that he had communications with the other ones, but they were scattered in different states. He stated that when they were together (in proximity), they had a close relationship. He stated that he only had two or three people with whom he hung out. With others, he was cordial, but he did not want to get too close. He stated that he could go to the Community Center if there were two or three people there, but if there were more than that, he started to get uncomfortable. For enjoyment, he went fishing. He would like to do more sightseeing, but his wife did not. Upon examination, the Veteran had symptoms of depressed mood; anxiety; suspiciousness; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; inability to establish and maintain effective relationships; and impaired impulse control such as unprovoked irritability with periods of violence. He was casually dressed with adequate hygiene, and he displayed a dysthymic mood with an appropriate range of affect. He stated that most of the time, he was in a good mood; however, he would “go off” if something happened or someone said the wrong thing. He stated that it was usually political. He felt that the country was in a state where it was not the country he fought for. He was able to maintain appropriate attention and concentration. He appeared to demonstrate adequate judgment and insight. He was oriented to all spheres and he did not have any signs of perceptual disturbance or impairment of thought process/content. There was no evidence of cognitive motor or speech impairment. He reported past suicidal ideations, noting his back pain. He stated that his doctor prescribed 3000 mg. per day of Tylenol. He stated that if he took that much, he would be dead in three days. He also stated that if the pain got too bad, he would do it. He said he had not had suicidal thoughts for a few years. He did not display any signs of homicidal ideations intent or plan, and he denied experiencing these symptoms. The examiner opined that his symptoms were manifested by occupational and social impairment with reduced reliability and productivity. The Veteran submitted a March 2020 independent examination report. The examiner noted that the Veteran had difficulty expressing his emotions and describing his feelings. His responses indicated that he was experiencing significant symptoms of depression and anxiety. When asked about specific symptoms, he was barely able to express how he was feeling or describe his emotions with much detail. The examiner opined that the Veteran’s language deficiencies and reticence, or inability to express his feelings and emotions, effectively minimized the severity of his posttraumatic stress disorder (PTSD) symptoms and their impact on his overall functioning at his January 2018 examination. The examiner noted that the Veteran’s high score (68) on the PTSD Checklist for DSM-V, was significantly above the threshold score of 33 for a diagnosis of PTSD. The examiner stated that the Veteran had difficulty adapting to stressful circumstances, had deficits in his short-term memory, as well as an inability to establish and maintain effective social relationships. He had significant occupational and social deficiencies in most areas of his life including work, family and social relationships, intermittent inability to perform activities of daily living, and poor judgment, due to continuous severe symptoms of PTSD with anxiety and depression that affects his ability to function independently, appropriately, and effectively. The Court has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one medical professional’s opinion over another, depending on factors such as reasoning employed by the medical professionals and whether, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Adequate reasons and bases, in short, must be presented if the Board adopts one medical opinion over another. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. 444, 448-9 (2000). In some cases, the physician’s special qualifications or expertise in the relevant medical specialty or lack thereof may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. In this case, the Board finds no adequate reasons or bases to find any one opinion more probative than the others. Though the private treatment report included a different conclusion than those of the VA examination reports, the conclusion was based on a thorough rationale and significant findings including a discussion of the Veteran’s scores on the Personality Assessment Inventory—Critical Items for Malingering (PAI-CIM), the Beck Depression Inventory-II (BDI-II), and the Posttraumatic Stress Disorder Checklist for DSM-5 (PCL-5). In giving the benefit of the doubt to the Veteran, the Board finds that a rating of 70 percent, but no higher, is warranted effective from the date of the claim (January 26, 2017). The Veteran has not contended, and the evidence does not reflect, that the Veteran’s disability is manifested by total occupational and social impairment. As noted above, the Veteran remains married and has good relationships with some of his children. He also stated that he has two or three people with whom he hangs out. Consequently, social impairment is not total. A TDIU is granted. In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). Consequently, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341 (a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. Effective September 24, 2012 (the date when his claim was received), the Veteran’s service-connected disabilities included coronary artery disease status post stent replacement, evaluated as 60 percent disabling; atrial fibrillation associated with coronary artery disease, evaluated as 30 percent disabling; peripheral venous insufficiency of the right and left lower extremities, each extremity evaluated as 0 percent disabling; residual scars after right leg vein harvest, evaluated as 0 percent disabling; and post-surgical mid-chest scar, evaluated as 0 percent disabling. His combined rating was therefore 70 percent. See 38 C.F.R. § 4.25. Thus, the Veteran met the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). The Board, however, must still determine whether the Veteran’s service-connected disabilities result in impairment so severe that it is impossible to follow a substantially gainful occupation. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. In the Veteran’s application for a TDIU, he stated that he was an electrician/tech who had completed two years of college. He stated that he had numerous electronic courses and computer repair. At his January 2020 Board hearing, the Veteran testified that his peripheral venous insufficiency of the right and left lower extremities causes swelling in his legs and makes it hard to climb. He stated that this is one of the reasons that he “had to give up” his job in 2012. He stated that the job was putting in security systems in overseas embassies. He stated that his jobs had been very physical in nature. He stated that his shortness of breath (a symptom of his coronary artery disease) limited his endurance and caused shortness of breath. He stated that he could only push a lawnmower for five to ten minutes before having to sit down. When asked about his ability to do a sit down (sedentary) job, the Veteran did not believe he could do it because of the swelling in his legs which caused him to not be able to concentrate. At an April 2012 VA examination, Veteran’s METs level was consistent with activities such as light yard work (weeding), mowing lawn (power mower), and brisk walking. The examiner stated that the functional impact of the Veteran’s coronary artery disease was that he had shortness of breath and difficulty with activity. He opined that this would limit the Veteran’s ability to be gainfully employed in a physical work environment. A November 2012 statement from the Veteran’s brother reflected that the Veteran’s stamina was 10 percent of what it was before his health problems began. In a December 2012 statement, the Veteran’s brother-in-law stated that since the Veteran’s coronary artery disease, he was unable to handle much physical labor. He stated that projects, long walks, and working all seemed to be things that were impossible for him to manage without intense difficulty breathing. He also stated that he experienced atrial fibrillation attacks whenever he attempted anything even remotely exerting or stressful. At a September 2013 VA examination for his peripheral venous insufficiency of the right and left lower extremities, the examiner noted that the Veteran’s job (before he quit) was installation of security systems, which was very physical, involving crawling, climbing and heavy lifting. The Veteran has been receiving Social Security disability benefits due to heart problems, atrial fibrillation, and hypertension. Records from the Social Security Administration (SSA) reflect that all the Veteran’s previous jobs have involved at least moderate physical activity. The Veteran’s April 2012 examination report makes it clear that his coronary artery disease would cause the Veteran to be unable to be employed in a physical work environment. The remaining questions are whether the Veteran would be able to perform sedentary jobs, and whether these jobs would be consistent with his education and occupational experience. It is unclear whether the Veteran would be able to perform sedentary jobs; however, the Board finds that a sedentary job would be unlikely to be consistent with his occupational experience. Records reflect that the Veteran’s jobs have required physical activity. In giving the benefit of the doubt to the Veteran, the Board finds that a TDIU is warranted effective from the date of the claim (September 24, 2012). REASONS FOR REMAND The issues of compensable ratings for peripheral venous insufficiency of the right and left lower extremities, is remanded. At the Veteran’s January 2020 Board hearing, his representative pointed out that the Veteran’s most recent examination is dated October 2013, and that the examiners did not have the proper equipment to render an opinion regarding the severity of the disability. The Board notes that the report states that ankle/brachial index testing could not be performed because the Veteran had large calves, and the “bp instrument on hand does not fit.” Although a new examination is not required simply because of the time which has passed since the last examination, VA’s General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Given that the examination is almost seven years old, and the Veteran’s contention that the examiner could not properly rate his disability, the Board finds that a new VA examination is warranted. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current severity of his service-connected peripheral venous insufficiency of the right and left lower extremities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.