Citation Nr: 21000160 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-46 093 DATE: January 4, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for asthma with benign granulomatous disease (claimed as chronic obstructive pulmonary disease (COPD)) as due to asbestos exposure is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s PTSD is shown to manifest in a disability picture that equates to occupational and social impairment with deficiencies in most areas; however, the evidence of record does not show total occupational and social impairment, as the Veteran maintains a stable relationship with his wife. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.14, 4.40, 4.59, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to September 1970, with verified service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. This matter was previously before the Board in September 2018, when it was remanded for further development to include contacting the Social Security Administration (SSA) to obtain any records pertaining to the Veteran’s claim for disability benefits and a Statement of the Case (SOC) considering additional and pertinent VA treatment records that have been added to the claims file since an October 2015 SOC. VA subsequently obtained records from SSA and a Supplemental SOC was issued in May 2020. The Board notes that, to the full extent possible, VA complied with the remand instruction requests, and there exist no deficiencies in VA’s duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998). The separately remanded claim for service connection for type II diabetes mellitus has been granted and is no longer on appeal. The Veteran’s representative requested a 90-day extension of time to submit evidence or argument in support of the appeal in July 2020 that was granted by the undersigned Veterans Law Judge (VLJ) in August 2020. The extension has run. The Veteran's PTSD is currently rated as 70 percent disabling (as noted in a May 2020 rating decision) under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under this section, a 70 percent rating contemplates 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); and an inability to establish and maintain effective relationships. A maximum 100 percent evaluation is warranted for a total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communications; 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 or close relatives, own occupation, or own name. The Board notes that the symptoms enumerated under the schedule for rating 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). When the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Mittleider v. West, 11 Vet. App. 181 (1998). While the evidence of record demonstrates that the Veteran's PTSD has resulted in a very substantial degree of occupational and social impairment, the Board does not find that the Veteran's symptoms are generally of similar severity, frequency, and duration as those described in the higher rating criteria for a 100 percent disability rating. The claims file includes multiple statements in support of the Veteran’s claim, including June 2013 correspondences wherein the Veteran reported being seen for anxiety disorder, severe panic attacks, depression, voices, and suicidal thoughts. A June 2013 VA mental disorders (other than PTSD and eating disorders) examination confirms diagnoses of major depressive disorder (MDD), moderate, recurrent, and generalized anxiety disorder. Occupational and social impairment was noted with reduced reliability and productivity. The Veteran acknowledged past suicidal ideation and plan but denied intent. Symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or events, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran appeared alert, oriented, cooperative, casually dressed, to be his stated age, adequately groomed with linear, coherent, and goal directed thoughts. Eye contact was good, speech was normal in rate, tone and volume, mood was fair, and affect was constricted. The Veteran denied current suicidal/homicidal ideation and hallucinations; however, he acknowledged hearing voices 2-3 times per month. In July 2013 Correspondence, the Veteran reported participation in several weeks of group therapy and struggling with his mental health for decades. The Veteran noted that suicidal thoughts and nightmares keep him awake for hours and the lack of good sleep continues to get worse. VA treatment records include a February 2013 psychiatry record that noted no evidence of hallucinations or delusions. A March 2013 psychology record noted the Veteran’s report of hearing voices since the mid-1970s. A May 2013 psychiatry record noted passive suicidal ideation (no intent or plan) and auditory hallucinations but was negative for homicidal ideation visual hallucinations or delusions. A July 2013 psychiatry record noted suicidal ideation but is negative for homicidal ideation, hallucinations or delusions. An October 2013 psychology record is noted denial of hallucinations or delusions. A December 2013 VA psychology record noted that the Veteran has expressed hopelessness and suicidal ideation without intent, but denied hallucinations or delusions; the Veteran was diagnosed with PTSD. In a March 2014 VA psychology record, the same staff psychologist noted a therapy session to explore the cause of the Veteran’s panic attacks. The Veteran reported he worked below the water line in the boiler room, often felt trapped, claustrophobic, and scared of being attacked. The same record notes a diagnosis of PTSD, and then acknowledges that the diagnosis may not be appropriate as there is a lack of a criterion A event. A May 2014 VA psychology addendum record noted a lack of strong clinical evidence for PTSD at this time, well documented in a May 2014 VA psychology record that noted a diagnosis of PTSD but indicated that the Veteran does not meet all of the criteria for a PTSD diagnosis; he did report being fearful for his life since he served on a ship during the Vietnam War, where the possibility of attack was within the realm of possibility. A September 2014 VA nursing record noted that the Veteran’s current emotional state is depressed, guarded, and anxious. The Veteran denied hallucinations and suicidal and homicidal ideation in December 2014, January 2015, and March 2015 VA psychiatry records. A June 2015 psychiatry record notes that the Veteran denied hallucinations and delusions. An August 2015 VA initial PTSD examination and attached medical opinion indicated that the Veteran did not have a diagnosis of PTSD but confirmed a diagnosis of persistent depressive disorder with moderate anxious distress. The examiner noted that the Veteran had no other mental disorders. Occupational and social impairment was noted as due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, and disturbances of motivation and mood were noted. The Veteran denied suicidal and homicidal ideation; however, he reported hearing voices. The Veteran’s affect appeared euthymic; speech was fluent and goal directed; judgment was ok; audio hallucinations noted; orientation to person, time, and place; no psychosis or obsessions noted; and good hygiene noted. The Veteran reported being unemployed since a 1992 leg injury. The examiner did not address the impact of the Veteran’s PTSD on his employment. Additional VA treatment records reviewed include multiple records dated between November 2015 and July 2016, wherein the Veteran reported suicidal ideation. A March 2016 psychology consult noted that the Veteran was referred for PTSD and anxiety treatment and wanted to find a therapy group closer to his home. A July 2016 psychology record noted the Veteran reported diagnoses of PTSD and major depressive disorder. The same record notes that the Veteran has severe symptoms suggestive of depression and clinically significant symptoms suggestive of PTSD. A suicide risk assessment noted a history of suicide attempts and acknowledgment of current suicidal ideation. The Veteran denied hallucinations and delusions in March 2016, October 2016, April 2017, and October 2017 VA psychology records. An August 2018 psychotherapy record notes there is no evidence of hallucinations or delusions. The Board also reviewed a March 2016 lay statement from the Veteran’s spouse wherein she confirms the Veteran has attended group therapy to cope with his mental disability and a March 2016 Statement in Support of Claim wherein the Veteran outlined his current mental health symptoms. Following the September 2018 Board remand, the Veteran was afforded a February 2020 VA review PTSD examination. The examiner confirmed a diagnosis of PTSD and unspecified depressive disorder. The examiner noted that symptomatology cannot be differentiated; the two conditions have virtually full symptom overlap and the same origins. Occupational and social impairment was noted with reduced reliability and productivity. Symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting were noted. The Veteran’s wife accompanied him, and he acknowledged he has a driver’s license. The Veteran’s hygiene and grooming was adequate, he was cooperative with the examiner, mood was mildly anxious, and affect was congruent, and speech was clear and audible. The Veteran was alert and oriented. The Veteran denied suicidal ideation, plan, or intent. The report notes that the Veteran is currently employed. The examiner noted that the Veteran is challenged in his interpersonal interactions and social contacts in work settings and commuting has reportedly resulted in panic attacks; thus, positions requiring public interaction and positions involving close collaborative work would be difficult. The examiner noted that the Veteran worked well within his father in laws company periodically for reduced hours with a small group of trusted individuals. The Veteran exhibited the intellectual and concentration to perform simple to mildly complex tasks in a solitary environment or when working from home. Working from home would limit the Veteran’s noted challenges with commuter stress that has the potential to negatively impact his concentration and emotional control functioning. The Board finds that the Veteran and his spouse are competent to observe outward symptoms of the Veteran’s PTSD. However, the Board notes neither the Veteran nor his spouse has been shown to possess the medical or mental health training or credentials necessary to determine whether the symptoms are of such severity as to meet the criteria for a 100 percent rating. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, their lay opinions lack probative value and are substantially outweighed by the VA examiners. Upon review of the evidence, the Board finds that a rating in excess of 70 percent is not warranted at any point during the appeal. Notwithstanding the Veteran’s acknowledged suicidal ideation and occasionally hearing voices, the Board notes that the June 2013 and September 2018 VA examiners found occupational and social impairment with reduced reliability and productivity, and the August 2015 examiner found occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Much of the analysis centers around the Veteran’s repeated denials of delusions and hallucinations. There are no contemporary medical records which reflect that the Veteran experiences neglect of personal appearance and hygiene, and near-continuous panic or depression or delusions and hallucinations, and neither he nor his family has asserted that he does indeed experience these symptoms or symptoms that are equally severe. Therefore, the Board finds that the preponderance of the evidence is against a determination that the Veteran experiences the spatial or temporal disorientation that would result in his total incapacitation, especially in light of the fact that the record shows that he continues to maintain a relationship with his wife of nearly 50 years. The Veteran’s symptomatology of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting and suicidal ideation, all contribute to a disability picture commensurate with the currently assigned 70 percent rating during the pendency of this appeal. Accordingly, a 100 percent total evaluation is not warranted at any time. Thus, the preponderance of the evidence is against the claim for a rating in excess of 70 percent for the Veteran’s service-connected PTSD; there is no doubt to be resolved; and an increased rating is not warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). This case raises no other issues, other than the TDIU claim described below. REASONS FOR REMAND A thorough review of the Veteran’s medical records establishes multiple respiratory diagnoses including asthma and COPD. In July 2020 correspondence, the Veteran’s attorney raised two new theories for entitlement to service connection for a respiratory condition to include COPD as secondary to herbicide agent exposure or in the alternative as secondary to the Veteran’s service-connected PTSD. A thorough review of the claims file shows that the Veteran has not been afforded a VA examination to specifically evaluate the nature and etiology of his COPD under these new theories, and such should be afforded on remand. 38 C.F.R. § 3.310. As to the Veteran’s claim for TDIU, found to be on appeal as part and parcel of the underlying increased rating claim for PTSD, his service-connected disabilities are listed in a May 2020 rating action. Given that he has a combined 80 percent disability rating, with one disability rating of 70 percent, he meets the criteria for schedular consideration for TDIU under 38 C.F.R. § 4.16(a). To date, however, there has been no opinion rendered addressing the extent to which his service-connected disabilities, taken as a whole, affect his ability to secure or follow a substantially gainful occupation, as required by that regulation for a TDIU grant. This must be corrected on remand. The matters are REMANDED for the following action: 1. After completing any indicated development, afford the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed respiratory condition, to include asthma and COPD. The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. The examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (a probability of approximately 50 percent or greater) that any diagnosed respiratory condition to include asthma and COPD had its onset in service or is related to his service, specifically to include as due to herbicide agent exposure. The examiner must also provide an opinion as to whether it is at least as likely as not that such disorder was caused or aggravated by the service-connected PTSD. The examiner is also requested to provide commentary as to the nature, extent, and impact of the Veteran’s service-connected disabilities, viewed together (and as listed in a May 2020 rating action), on his ability to function in multiple employment settings (e.g., sedentary and physical). A complete rationale must be given for all opinions and conclusions expressed. The Board acknowledges complications with examination scheduling due to COVID-19 and encourages the medical facility to consider a telephone interview, or other telehealth means, if scheduling an examination is impracticable or would lead to significant delay or burden to the Veteran. 2. Thereafter, take any additional development action deemed warranted and adjudicate TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case, addressing both issues (if still denied), which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative must be afforded the applicable time period to respond. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.