Citation Nr: 21001124 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 10-36 332A DATE: January 7, 2021 ORDER Service connection for gastroesophageal reflux disease (GERD) is denied. An initial rating in excess of 20 percent for hypertension is denied. A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) (psychiatric disability) is denied. A total disability rating based on individual unemployability (TDIU) due to the service-connected psychiatric disability is granted. Special monthly compensation (SMC) at the housebound rate, effective July 28, 2009, to April 16, 2010, and from June 1, 2011, to October 15, 2016, is granted. FINDINGS OF FACT 1. GERD was not incurred in service and is not etiologically related to service. 2. The hypertension does not and has not resulted in diastolic pressure predominantly at or above 120. 3. The Veteran’s psychiatric disability has not resulted in total impairment, but it has rendered the Veteran unable to obtain and maintain substantially gainful employment. 4. In addition to his PTSD, service connection is in effect for disabilities that are rated as rated at 60 percent disabling, effective July 28, 2009. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for an initial rating in excess of 20 percent for hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7101. 3. The criteria for a total schedular rating for the psychiatric disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9434-9412. 4. The criteria for a TDIU based solely on the service-connected psychiatric disability, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.15, 4.16. 5. 9. The criteria for SMC at the housebound rate, effective July 28, 2009, to April 16, 2010, and from June 1, 2011, to October 15, 2016, have been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1972 to August 1975. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2015. This appeal was previously remanded by the Board in April 2015. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). A March 2010 VA treatment record reveals the Veteran’s history of heartburn since eating pizza the previous night. He reported that it happened every time he ate pizza. The diagnosis was GERD with specific spicy foods and pizza. A November 2019 VA examination record reveals diagnosis of GERD. The Veteran reported that he sustained an abdominal injury in service after which time he developed a hiatal hernia and GERD symptoms. He reported symptoms of intermittent epigastric pain, reflux, and regurgitation at least three to four times per week. The examiner determined it was less likely than not that the GERD was incurred in or caused by service. The examiner noted that the medical records were silent for any evidence of abdominal trauma during service and that there was no objective imaging or testing found to establish the presence of a hiatal hernia. The examiner stated that due to lack of service documentation of trauma or current medical evidence of hiatal hernia and with multiple other causative factors for GERD, the examiner determined it was less likely than not that the GERD was incurred in or caused by service. After review of the record, the Board finds service connection is not warranted for GERD. The service medical records do not suggest the existence of GERD, and a VA examiner has provided a probative opinion that it is not likely that the GERD was incurred in or caused by service. The record does not include any medical findings linking the GERD to service, including medical evidence linking GERD to the reported in-service abdominal injury or abdomen injuries in general. The Veteran has reported that he developed a hiatal hernia and GERD during service. He has explained that the basis for this contention is that he could see the hiatal hernia during service and that he developed symptoms during service after an abdominal injury from a parachute harness. The Veteran is competent to report observable symptoms. The record does not reveal any diagnosis of a hiatal hernia or past treatment for hiatal hernia, however, and the VA examiner determined the Veteran does not have and has not had a hiatal hernia. The Board finds the Veteran’s history of hiatal hernia is not probative because it is contradicted by the medical record, which includes clinical evaluation for hiatal hernia. Regarding the GERD, the Board finds the record does not support the history of chronic GERD during and since service. Specifically, the Board finds the current history of chronic GERD symptoms is inconsistent with the history in 2010 that the GERD only manifest with certain food, like pizza. The Board finds the Veteran would not have limited the symptoms to a certain food if it were chronic. To the extent the Veteran’s history could be interpreted as a history of intermittent symptoms since service, the Veteran is not competent to attribute intermittent symptoms to a chronic disability as opposed to distinct episodes or even multiple episodes of acute disorder, and the Board further finds the Veteran’s histories are of limited credibility as the record contradicts the history of hiatal hernia during and since service. Accordingly, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. Increased Ratings 1. Hypertension A 10 percent rating is warranted for hypertension if diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or where the individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 July and August 2009 private treatment record reveals the Veteran’s history that his blood pressure had been low. A December 28, 2009, private treatment record reveals blood pressure of 129/75, a January 25, 2010, private treatment record reveals blood pressure of 120/77 and a February 22, 2010, treatment record reveals blood pressure of 128/74. A February 23, 2010, private treatment record reveals blood pressure of 132/82. A March 9, 2010, VA treatment record reveals blood pressure readings of 151/80 at 08:17 and 126/81 at 08:35. A March 17, 2010, private treatment record reveals blood pressure of 130/90. A June 11, 2010, VA blood pressure reading reports blood pressure of 109/62. An October 2010 VA examination record reveals the Veteran’s history that his blood pressure averaged 140s/90s. Blood pressure was reportedly 170/100 three times. A November 4, 2010, VA treatment record reports a blood pressure of 165/107 and a repeat blood pressure of 177/111. The record was amended to add blood pressure readings of 177/122, 178/128, 163/111, and 172/118. These readings correspond to a November 2010 record submitted by the Veteran reports four blood pressure readings on November 4, 2010, with two readings with diastolic pressure above 120 and two below. A November 30, 2010, VA examination record reports blood pressure of 150/80. A November 30, 2010, private medical summary reports that blood pressure was reported as 189/119, 191/112, 175/125, 175/116, 177/120, 198/112, and 201/124 between 3:40pm and 4:05pm on that date. A December 9, 2010, VA treatment record reveals blood pressure of 174/112, which was originally 182/123. The Veteran has reported that the first three blood pressure readings were 187/125, 176/120, and 194/122. The record adds that repeat blood pressure after Clonidine at 12:45 was 172/106 in the right arm and 179/106 in the left arm. An amended December 9, 2010, VA treatment record states that blood pressure was 124/112, originally 182/123, and that blood pressures of 188/125, 176/120, and 194/122 were added. A January 12, 2011, VA treatment record reveals blood pressure of 179/104 after a 10 minute recheck. The Veteran reported that the first blood pressure reading on that date was actually 202/126. An amended January 12, 2011, VA treatment record reports blood pressure readings of 179/104 and 202/126. A January 24, 2011, VA treatment record reveals blood pressure readings of 151/106, 159/95 repeated, and 172/124. A February 2011 record reports a blood pressure reading of 149/129 reportedly taken on February 25, 2011, and blood pressure readings of 160/120 in the left arm and 162/118 in the right arm on an undisclosed date. February 2011 VA treatment records report diastolic readings of 85 and 92 on February 16, 2011, and 129 and 109 on February 25, 2011. The Veteran has denied that a repeat blood pressure reading was performed on February 25, 2011. The February 25, 20111, VA treatment record notes that the Veteran was not taking his medication as prescribed. The amended February 25, 2011, VA treatment record reports that the repeat blood pressure of 141/109 should be replaced with 149/129. A March 16, 2011, VA treatment record reveals the Veteran’s history that he took his medication. The Veteran reported blood pressure of 140/80 at his private physician. Blood pressure readings on that date were 154/114 and 158/99. A June 20, 2011, VA treatment record reveals that the Veteran had not taken his blood pressure medication. Blood pressure readings were noted as 142/94 and 139/101. The record also notes blood pressure reading of 158/99 on March 17, 2011. A June 30, 2011 VA treatment record reveals a blood pressure of 126/87 and a November 15, 2011, VA treatment record reveals blood pressure of 132/84. An August 1, 2013 VA examination record reveals the Veteran’s history of continued problems with high blood pressure. Blood pressure was noted as 177/103, 181/102, and 161/92 and was reportedly taken August 1, 2013. In an August 2013 statement, the Veteran reported that his blood pressure readings on August 1, 2013, were 188/137 and 182/135 and then he was provided an extra- large cuff was used which produced a false lower blood pressure reading. The Veteran reported that the new technician used the regular cuff instead and that his blood pressure was read as 185/130 and then after insistence from the examiner, an extra-large cuff was used which showed blood pressure of 177/113 and 181/112. The Veteran reports that he was the only person who recorded the readings. The Veteran reported that he returned on August 5, 2011, and his blood pressure was 177/103, 181/102, and 161/92. A December 8, 2014, private treatment record reveals blood pressure of 158/102. March 18, 2015, private treatment record reports blood pressure of 136/82. An April 18, 2016, private treatment record reveals blood pressure of 146/101. An October 2016 Disability Benefits Questionnaire reveals blood pressure of 142/83. A March 15, 2017, private treatment record reveals blood pressure of 126/77, and a December 4, 2018, private treatment record reports blood pressure of 143/100. A November 2019 VA examination record reports that the Veteran’s hypertension was well-controlled with medication. Blood pressure was noted to be 112/90, 110/70, and 110/70 on November 27, 2019. The Board finds a rating in excess of 20 percent is not warranted because the evidence does not suggest diastolic pressure predominantly 120 or more during the period of the claim. Although the record includes diastolic pressure readings at and above 120, blood pressure readings from the same days as those with diastolic pressure at or above 120 also reveal diastolic pressure readings below 120. Review of the entire record documents that the predominant diastolic pressure reading is below 120. In making this determination, the Board has considered the private treatment records, amended VA medical records, and statements from the Veteran. To the extent the Veteran has pointed to readings in service, prior to the use of medication, as support for a higher rating, the Board notes that the rating criteria only authorizes rating based on historic review for the 10 percent rating. The Board acknowledges that the Veteran’s blood pressure is affected by medication and that it has been worse when the Veteran has not been medication compliant. The use of medication is contemplated in the applicable diagnostic criteria, however. See McCarroll v. McDonald, 28 Vet. App. 267 (2016) (en banc). As such, the Court has held that Diagnostic Code authorizes VA to take into account the ameliorative effects of medication when evaluating the hypertension. Finally, the Board notes that it is unclear if all private treatment records have been associated with the record. The Veteran has reported that he will not give VA permission to retrieve any medical files; he reported that he would send any required files. It is therefore the Board’s conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of the claim. See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA’s duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). Thus, the claim for an increased initial rating is denied. 2. PTSD The Veteran’s psychiatric disability is evaluated under Diagnostic Code 9411, which provides a 70 percent rating when the evidence shows 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 inability to establish and maintain effective relationships. A 100 percent evaluation 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 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. The symptoms listed are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The record reveals the Veteran’s consistent endorsement of symptoms including depressed mood, anxiety, social isolation, and nightmares. Private treatment records dated during the appeal period report that the Veteran had appropriate behavior, appropriate appearance, full orientation, intact thought content, and fluent speech and consistently negative histories of suicidal and homicidal ideation. Medical summaries provided in August 2009, February 2010, and January 2015 by the treating private psychiatrist report that the Veteran had significant impairment related to his ongoing depression and anxiety. VA treatment records consistently reveal negative histories of suicidal ideation and findings of intact orientation and appropriate appearance. A July 2011 VA examination record reveals that the Veteran expressed himself clearly, was easy to follow, and initiated topics appropriately. He reported that he was married and had minimal and irregular contact with his siblings and mother. He denied friends. He reported a history of suicidal thoughts but not in a “few years,” and he reported that he had discussed his suicidal thoughts with his private psychiatrist. He reported new histories of multiple nights without sleep and panic attacks multiple times per month. A February 2020 VA examination record reveals the determination that the Veteran had psychiatric disability resulting in occupational and social impairment with deficiencies in most areas. The Veteran reported that he had been married and divorced seven times and that he was estranged from his children. He reported that he lived with his wife, but he spent the majority of the time in the garage while his wife was in the home. He described his home and family life as generally strained and detached and reported that he was mostly socially isolated with minimal interpersonal interactions. The examiner noted the endorsement of symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining relationships, difficultly in adapting to stressful circumstances, and neglect of personal appearance and hygiene. The examiner noted that the Veteran presented as dysphoric with a constricted affect. He was alert and oriented and did not evince any disturbances in speech, thought, memory, concentration, or behavior, and insight and judgment were fair. The record reports the Veteran’s history that he tends to neglect personal hygiene, going several days without bathing or attending to appearance. He explained that without working or intimate relations with others, he had minimal motivation to maintain a standard of personal appearance or hygiene. The examiner stated that the psychiatric disability would result in difficulty attending to a task at hand, difficulty maintaining concentration and focus on work over a period of time, intrusive thoughts that interfere with ability to stay focused, significant difficulty accepting supervision or receiving instructions without becoming angry, significant difficulty functioning around other people, and sufficient depression to result in difficulty sustaining energy and motivation to complete assignments. A total schedular rating is not warranted under Diagnostic Code 9411. Notably, the record does not suggest impairment more severe than “deficiencies in most areas,” which is the impairment contemplated by the 70 percent rating. The Veteran consistently demonstrates no impairment of speech, thought process, ability to control behavior, or orientation and no more than mild memory impairment. He has been able to provide his own history during examination and other medical treatment and in conjunction with the appeal. Although the record indicates that the Veteran has impaired motivation and mood which has led to diminished hygiene, the record indicates that he is consistently well-groomed at appointments, and there is no indication that he is unable to perform acts of hygiene or any other acts of daily living due to the psychiatric disability. The record reveals the Veteran’s reports of suicidal ideation that he has discussed with his treating psychiatrist. The private treatment records consistently report negative suicidal ideation, however, and the record is absent any suggestion that the Veteran has plan or intent to attempt suicide or that the Veteran poses a risk to himself or others. The Board acknowledges that the Veteran has impairment resulting in reportedly near total social isolation – though a March 2010 lay statement describes the relationship with the Veteran as “close friends” – and significant occupational impairment. The Board finds the Veteran’s degree of independent functioning is too significant to approximate a total rating rather than the current rating, however. In sum, the Board finds the record does not suggest total impairment, particularly total social impairment, or otherwise more nearly approximate the disability picture contemplated by the total rating. 3-4. TDIU, Entitlement to SMC pursuant to 38 U.S.C. § 1114(s). A total disability rating based on individual unemployability (TDIU) may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The record indicates that the Veteran is assigned a combined 100 percent rating from July 28, 2009, and special monthly compensation pursuant to 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.40(i) from April 16, 2010, to June 1, 2011, and from October 15, 2016, forward. Thus, the claim for a TDIU is moot except for SMC purposes; a TDIU is only available if a single service-connected disability resulted in unemployability from July 28, 2009, to April 16, 2010, or from June 1, 2011, to October 15, 2016. See Youngblood v. Wilkie, 31 Vet. App. 412 (2019); Buie v. Shinseki, 24 Vet. App. 242 (2011). The record indicates that prior to April 16, 2010, service connection is in effect for atrial fibrillation (60 percent), posttraumatic stress disorder, a lumbar spine disability (10 percent from July 28, 2009, and 20 percent from July 14, 2010), radiculopathy of the right lower extremity (40 percent from July 28, 2009), and hypertension (20 percent). From June 1, 2011, service connection is additionally in effect for a right knee disability (60 percent), obstructive sleep apnea (50 percent), surgical scar (noncompensable) and deviated nasal septum. After a review of the evidence and resolving any reasonable doubt, the Board finds that the evidence supports the conclusion that the Veteran's service-connected psychiatric disability prevented him from securing and following substantially gainful employment. The record indicates that the Veteran has significant impairment of motivation and mood, concentration, and interpersonal relationships which would inhibit him from engaging in occupations consistent with his prior experience and education. Further, pursuant to VA's “well-established” duty to maximize a claimant's benefits, the Board finds that the Veteran is entitled to an award of SMC from July 28, 2009, to April 16, 2010, and from June 1, 2011, to October 15, 2016. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010); AB v. Brown, 6 Vet. App. 35, 38 (1993); Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.