Citation Nr: 21001268 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-45 100 DATE: January 7, 2021 ORDER Entitlement to an increased rating greater than 30 percent for posttraumatic stress disorder (PTSD), to include an earlier effective date prior to July 21, 2020, and a rating greater than 70 percent thereafter, is denied. Entitlement to a total disability rating based on individual unemployability prior to May 24, 2019, is denied. REMANDED Entitlement to service connection for hypertensive emergency and monocular blindness, claimed as ischemic heart disease (IHD), is remanded. FINDINGS OF FACT 1. Prior to July 21, 2020, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. After July 21, 2020, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. 3. The Veteran did not meet the criteria for consideration of TDIU on a scheduler basis prior to May 24, 2019; the evidence does not show he was been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities during this period, and forwarding the matter to the Director, Compensation service for extraschedular consideration was not required. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for PTSD prior to July 21, 2020 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for a disability rating in excess of 70 percent for PTSD as of July 21, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). 3. The criteria entitlement to TDIU prior to May 24, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to March 1969. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. This case was most recently before the Board in November 2019. At that time, the Board remanded the issues on appeal for further development. The Board’s previous remand directives have not been substantially complied with, and another remand is necessary for entitlement to service connection for hypertensive emergency and monocular blindness, claimed as ischemic heart disease (IHD). See Stegall v. West, 11 Vet. App. 268 (1998). Duty to Notify and Assist The appellant has not raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Effective Date Generally, the effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of a rating and award of compensation on an original claim for compensation will be the day following separation from active duty service or date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400(b)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, a duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155. VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1 (p), 3.155(a); Servello v. Derwinski, 3 Vet. App. 196 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to a rating greater than 30 percent for posttraumatic stress disorder (PTSD), to include an earlier effective date prior to July 21, 2020, and a rating greater than 70 percent thereafter The Veteran contends that a rating greater than 30 percent is warranted prior to July 21, 2020 for PTSD, to include an earlier effective date, and 70 percent rating thereafter. Where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco, supra. Therefore, for the non-initial increased rating claims, the Board will only consider evidence submitted one year prior to the filing of the claim for an increased rating, rather than from the initial assignment. The Veteran filed his claim for an increased rating in January 2017. Therefore, the period on appeal starts from January 2016. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Evaluation prior to July 21, 2020 A February 2016 rating decision granted the Veteran service connection for PTSD and assigned a 30 percent evaluation, effective September 18, 2015. In general, the effective date of an award of disability compensation shall be the date of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). An exception to this rule is in the case of non-initial increased rating claims when it is factually ascertainable that an increase in disability occurred within the one-year period prior to the filing date of the claim. In this case, the effective date will be the date the increase was shown. 38 C.F.R. § 3.400 (o)(2). A February 2016 VA PTSD examination showed that the Veteran had a diagnosis of PTSD. The examiner noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran’s symptoms were noted as depressed mood, anxiety, chronic sleep impairment and disturbances of motivation and mood. A February 2016 rating decision granted a 30 percent rating based on the evidence of record. A new VA examination was afforded to the Veteran in March 2017. The examiner opined that the Veteran’s symptoms were within a similar range of frequency and severity, as well as occupational and social functioning, as the February 2016 VA examination. The Veteran was once again noted to have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran submitted a notice of disagreement (NOD), that was received in July 2017. He Veteran indicated that he has PTSD symptoms, including difficulty in establishing and maintaining effective work and social relationships, and difficulty with short term memory. See July 2017 NOD. A July 2017 statement of the case (SOC) continued to deny a higher rating based on the evidence of record. See July 2017 SOC. After the Veteran appealed to the Board, he testified before the undersigned VLJ in August 2019 that the previous VA examinations were inadequate. The Veteran added that the March 2017 VA examination only lasted eight minutes and he was driven to that examination by an employee of the Providence VA Regional Office, who corroborated the short VA examination. The Veteran was afforded a new VA examination after the Board remanded the issue in November 2019. The Veteran also submitted lay statements from his spouse and himself, describing his PTSD symptoms. See February 2020 lay statements. The Veteran’s spouse added that she observed that the Veteran had no friends and that he isolates himself. She added that he is suspicious of people and avoids contact. She adds that he has difficulty sleeping and trouble falling asleep. She concludes that he has no quality of life and that he is unable to express what he is feeling or thinking. She describes his PTSD as being severe. The Veteran added in his own lay statement that he is suspicious of people and does not like being around others. He also added that he can’t hold on to a job because he can’t get along with people and has thoughts about his service in Vietnam and the trauma of serving there. The Veteran was afforded a post-remand July 2020 VA examination. The examination noted the evidence of record, including the lay statements provided by the Veteran and his contentions that the March 2017 VA examination lasted only 8 minutes. The Veteran’s symptoms were noted as depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent news, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or work like setting, impaired impulse control, such as unprovoked irritability with periods of violence and neglect of personal appearance and hygiene. The examiner noted that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In August 2020, the Veteran submitted a statement in support of claim, adding that the July 2020 VA examination was inadequate because it did not address the previous eight-minute examination. However, the Board observes that the July 2020 VA examiner noted the Veteran’s contention regarding the previous short VA examination. The evidence of record does not show that it is factually ascertainable that a rating greater than 30 percent is warranted for the period prior to July 21, 2020 because the Veteran’s PTSD is not shown to have 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. Even if the March 2017 VA examination is found to be inadequate, the other PTSD examinations of record appear to be adequate and valid for rating purposes. Considering the frequency, severity and duration of the Veteran’s PTSD prior to July 21, 2020, it does not appear that a rating greater than 30 percent is warranted. Evaluation after July 21, 2020 A July 2020 rating decision increased the Veteran’s 30 percent rating to 70 percent, effective 21 July 2020, the date of the VA examination that showed a worsening of the condition. As noted above, a 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Considering the frequency, severity and duration of the Veteran’s PTSD after July 21, 2020, the evidence of record does not show that the Veteran’s PTSD rises to the level of total occupational and social impairment to warrant a 100 percent rating after July 21, 2020. Although the Veteran contends that the July 2020 VA examination is inadequate because it allegedly failed to note a previous short VA examination, the Board finds that the examination is adequate for rating purposes and considered the Veteran’s lay statements, including his contention that a previous VA examination only lasted eight minutes. The VA examiner noted all the Veteran’s symptoms and added that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In adjudicating a claim, the competence and credibility of the Veteran and other lay persons must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran and his spouse are competent to present as evidence what they observe or experience. For example, the Veteran is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The lay statements provided by the Veteran have been considered and the Board finds that the statements are outweighed by the clinical findings of record. The Board assigns greater probative value to the clinical findings in the VA examination reports and clinical records that were recorded following physical examinations of the Veteran, based on the medical expertise of the examining physicians. These are more probative than the Veteran's assertions requesting a higher rating. There is no indication that the Veteran or his spouse have the requisite medical expertise or knowledge to determine the severity of his PTSD, pursuant to Diagnostic Code criteria, which has not been shown by the clinical evidence of record. Thus, the lay assertions provided by the Veteran regarding severity of his PTSD are not credible. Accordingly, a higher rating during the period on appeal is not warranted. For the foregoing reasons, the Veteran's service-connected PTSD does not warrant a disability rating in excess of 30 percent prior to July 21, 2020, to include an earlier effective date, and a rating greater than 70 percent thereafter. As the preponderance of the evidence is against a higher disability rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. TDIU – Legal Criteria A TDIU rating may be assigned when the schedular rating is less than 100 percent and disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. If unemployability is claimed as a result of only one service-connected disability, it must be rated at 60 percent or more. If it is a result of two or more disabilities, at least one disability must be rated at 40 percent or more, with at least another sufficient disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.341 (a), 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to show 100 percent unemployability to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (stating that entitlement to TDIU is based on an individual's particular circumstances). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 24, 2019 The Veteran contends that an earlier effective date is warranted for the assignment of TDIU. A review of the record shows that the Veteran met the schedular criteria for TDIU on May 24, 2019 and was assigned the same date as the effective date for TDIU since it was the date the entitlement arose. Prior to May 24, 2019, the Veteran was service connected for PTSD, rated as 30 percent disabling; tinnitus evaluated as 10 percent disabling; and hearing loss evaluated as 0 percent disabling, with a combined evaluation of 40 percent. As noted above, a TDIU rating may be assigned when the schedular rating is less than 100 percent and disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. If unemployability is claimed as a result of only one service-connected disability, it must be rated at 60 percent or more. If it is a result of two or more disabilities, at least one disability must be rated at 40 percent or more, with at least another sufficient disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.341 (a), 4.16(a). Based on the foregoing, the Veteran did not meet the schedular criteria prior to May 24, 2019. The Veteran submitted a very brief private opinion from Dr. M.L., indicating that “he is not fit for employment due to multiple serious health conditions,” without any additional information regarding any of the conditions. As a result, the Board finds this opinion inadequate to grant an earlier effective date for TDIU. The Board also considered whether referral for entitlement to TDIU on an extraschedular basis was warranted prior to May 24, 2019. However, there is no persuasive credible evidence that the Veteran was unemployable solely due to his service-connected disabilities and the Veteran has not raised entitlement to an extraschedular rating. Furthermore, in his January 2017 VA 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran indicated that his PTSD prevents him from securing or following any substantially gainful employment. The Board adjudicated whether a rating greater than 30 percent prior to July 2020 is warranted for the Veteran’s PTSD and found that a higher rating is not warranted and that the rating criteria reasonably describes the Veteran’s disability level and symptomatology. See Thun v. Peake, 22 Vet. App. 111 (2008). As the preponderance of the evidence is against the grant of an earlier effective date for TDIU, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 3. Entitlement to service connection for hypertensive emergency and monocular blindness (claimed as ischemic heart disease (IHD)) is remanded The Veteran contends that service connection is warranted for hypertensive emergency and monocular blindness, also claimed as ischemic heart disease (IHD). The Board previously remanded this issue after finding that there is no indication in the record that the Veteran is unable to participate in an exercise stress test and as such, the Veteran should be afforded a VA examination that administers an exercise stress test over an interview based METs test, and to associate any additional records. Due to the COVID-19 pandemic, the Veteran was afforded a VA examination in May 2020 utilizing the Acceptable Clinical Evidence (ACE) exam method and medical records available from the claims file were reviewed. An interview based METs test was administered once again, instead of an exercise stress test that the Board had preferred. During an August 2019 Board hearing, the Veteran’s representative asserted that a March 2017 VA examination was inadequate. The representative noted that while the March 2017 VA examiner found that the Veteran did not have IHD, an interview based METs test was conducted instead of an exercise stress test, resulting in inaccurate findings. In November 2020, the Veteran’s representative argued in a post-remand Informal Hearing Presentation (IHP) that the diagnosis of the Veteran’s heart disease was based on history only and there was no objective evidence to support the diagnosis. As VA has resumed in-person VA examinations, another remand is necessary based on the representative’s IHP argument and to ensure compliance with the Board’s previous remand directives and afford the Veteran an in-person exercise stress test. See Stegall, supra. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for an in-person examination by an appropriate clinician to determine the nature and etiology of his hypertensive emergency and monocular blindness, claimed as IHD. The electronic claims folder, including a copy of this remand, should be made available to the examiner, and the examiner must review the entire claims file in conjunction with the examination. 2. A complete history should be elicited directly from the Veteran and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. During the in-person examination, if a determination of METs by exercise testing cannot be done for medical reasons, that fact must be documented on the examination report, and the examiner’s estimation of the level of activity, an interview-based METs test, expressed in METs and supported by examples of specific activities, that result in cardiac symptoms, is acceptable. Following examination of the Veteran, the examiner is asked to respond to the following: a. Is the Veteran diagnosed with, or has the Veteran ever been diagnosed with a heart condition? b. If so, does the diagnosis qualify as IHD? Please respond for each diagnosis listed. c. If the Veteran is or has been diagnosed with a heart condition that is not considered IHD, determine whether it is as least as likely as not that the Veteran’s diagnosed heart condition had causal origins in service or is otherwise related to the Veteran’s active duty service, particularly considering the Veteran’s presumed herbicide exposure in Vietnam. d. Determine whether it is as least as likely as not that the Veteran’s hypertensive emergency and monocular blindness had causal origins in service or is otherwise related to the Veteran’s active duty service, particularly considering the Veteran’s presumed herbicide exposure in Vietnam. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.