Citation Nr: 21001936 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-03 727 DATE: January 12, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected lower back condition is denied. Entitlement to a 100 percent disability rating for service-connected post-traumatic stress disorder, effective May 29, 2015, is granted. Entitlement to service connection for hypertension, to include as due to Agent Orange exposure is denied. REMANDED Entitlement to an initial disability rating in excess of 30 percent for service-connected coronary artery disease (CAD) for the period prior to August 21, 2015, and in excess of 60 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability for the period prior to May 29, 2015, is remanded. FINDINGS OF FACT 1. The Veteran’s lower back disability is manifested by, at worst, total range of motion of 120 degrees, forward flexion of 45 degrees, no muscle spasm, no guarding, no ankylosis, and no additional loss of function on repetition or due to flare-ups. 2. From May 29, 2015, the severity, frequency, and duration of the Veteran’s psychiatric symptoms more closely approximate total occupational and social impairment. 3. The preponderance of the evidence establishes the Veteran’s hypertension was not present until more than one year following his discharge from service and is not etiologically related to his active service, to include as due to Agent Orange exposure. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected lower back condition have not been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.71a, Diagnostic Codes 5243. 2. The Veteran’s PTSD warrants a disability rating of 100 percent beginning May 29, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for establishing entitlement to service connection for hypertension, to include as due to Agent Orange exposure have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1970 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in July 2019, it was remanded for additional development. Specifically, the RO was instructed to obtain medical opinions regarding the Veteran’s claimed disabilities. The Veteran was provided with the relevant examinations. As such, the Board finds that the AOJ substantially complied with the directives in the July 2019 remand regarding the below adjudicated issues. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating—Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the 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. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). The Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran’s claims. Lower Back Condition Legal Criteria The Veteran’s lumbar spine disability is rated as 20 percent disabling, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. As relevant to the lumbar spine, under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Intervertebral disc syndrome is evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in a higher evaluation. In relevant part, the Veteran’s IVDS can be rated at 20 percent disabling with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the last 12 months. A 40 percent rating with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under DC 5243 an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Analysis The Veteran contends that he is entitled to a disability evaluation in excess of 20 percent for his service-connected lumbar spine disability. As noted above, when this case was last before the Board in July 2019 it was remanded for a VA examination to address the current severity of the Veteran’s lower back condition. The Board notes that while there are earlier VA examinations in the file regarding the Veteran’s lower back, the evidence presented therein does not differ significantly from, nor is worse than, the information in the below cited VA examination. In response to the Board remand, the Veteran was provided with a February 2020VA Back conditions examination. The examiner confirmed the Veteran’s diagnosis of lumbosacral strain with rheumatoid spondylitis, sacroiliac joints, and degenerative joint disease; additionally, the examiner diagnosed the Veteran with bilateral lower extremity radiculopathy. Range of motion measurements were reported as abnormal with forward flexion to 45 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left rotation each to 15 degrees. Pain was noted on the examination that caused functional loss; however, the Veteran was able to perform repetitive use testing without additional functional loss. The examiner reported that the examination was not being conducted during a flare-up, however, the Veteran reported no additional functional loss during flare-ups and the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups. The examiner noted that the Veteran experiences no pain on weight bearing or non-weight bearing, and no pain on passive range of motion. No muscle spasms or guarding were recorded. No ankylosis of the spine was reported. The Veteran does not have IVDS. VA treatment records indicate that the Veteran has continued to receive treatment for back pain, however, they do not reflect manifestations of the Veteran’s lower back disability that are more severe than those documented within the above VA examination. Thus, upon careful consideration of the evidence, the Board determines that a disability rating in excess of 20 percent is not warranted for the Veteran’s lower back disability. The 20 percent rating contemplates the Veteran’s limitation of forward flexion to no less than 45 degrees with pain observed with movement. A rating in excess of 20 percent would require forward flexion to 30 degrees or less, unfavorable ankylosis of the Veteran’s spine, or IVDS with incapacitating episodes having a total duration of at least 4 weeks. Ankylosis of the Veteran’s spine was not observed at any point during the appeal period. In addition, there is no medical record of the Veteran experiencing IVDS. The Board has considered the Veteran’s lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserts that his current condition entitles him to a higher disability rating, such statements are inconsistent with the medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). As noted above, the rating criteria requires that for a 40 percent rating the Veteran must have IVDS with incapacitating episodes at least 4 weeks in duration, favorable ankylosis of the lumbar spine, or forward flexion to 30 degrees or less. However, the medical evidence shows that the Veteran does not have ankylosis, forward flexion to 30 degrees or less, or IVDS and as such, the Board assigns greater weight to the medical evidence. For these reasons, the Board finds that a rating in excess of 20 percent for the Veteran’s low back disability is not warranted at any time during the appeal period. Therefore, the Board concludes that a preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s lower back disability. The claim is, therefore, denied. PTSD Legal Criteria The Veteran’s PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. In pertinent part, a 70 percent disability rating is warranted for 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 worklike setting); and inability to establish and maintain effective relationships. Finally, a 100 percent disability rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought process 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; and memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Analysis The RO has assigned a 70 percent rating for the Veteran’s PTSD effective for the entire period prior to February 8, 2020. The Board disagrees with the assigned rating, and for reasons explained below, the Board finds that a 100 percent rating is warranted from May 29, 2015. The Board has carefully reviewed the Veteran’s VA treatment notes. The Board has also thoroughly reviewed the results from the VA examinations conducted in March 2013, July 2013, May 2015, and February 2020. Further, the Board has also prudently considered the Veteran’s own statements. In sum, those records show the Veteran received consistent mental health care throughout the period on appeal. The above-noted evidence shows the Veteran has experienced several significant symptoms and impairments, which include: nightmares; depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; flattened affect; speech intermittently illogical, obscure, or irrelevant; difficulty understanding complex commands; impaired judgment; impaired abstract thinking; gross impairment in thought processes; disturbances of motivation and mood; difficulty establishing and maintaining effective relationships; difficulty adapting to stressful circumstances; obsessional rituals which interfere with routine activities; impaired impulse control; intermittent inability to perform activities of daily living and suicidal ideation. In this case, the copious evidence plainly establishes the Veteran’s psychiatric manifestations have resulted in deficiencies in all areas of life functioning. Specifically, his symptoms have significantly impaired his ability to work, caused him marked social impairments, considerably impacted his family role functioning, caused marked deficiencies in judgment, and resulted in severe mood impairments. During his July 2019 Board Hearing, the Veteran reported that while he does not have active suicidal plans he experiences occasional instantaneous thoughts of suicide. He further reported that he tends to be quick to anger and forgetful. The Board also notes that during his February 2020 VA examination, the examiner indicated that the Veteran has been experiencing total occupational and social impairment since at least 2015 when he was fired from his job due to explosive verbal outbursts towards others. As noted above, the criteria for a 100 percent evaluation does not indicate total occupational and social preclusion; rather, it merely states a veteran must have total impairment. The Board again notes a 70 percent rating is warranted when psychiatric manifestations cause impairment in most areas of life functioning; however, from at least 2015, this Veteran’s psychiatric manifestations have resulted in impairments in all areas of life. As such, the Board has afforded the Veteran the benefit of reasonable doubt and finds his disability picture more nearly approximates the criteria necessary for an increased 100 percent disability rating beginning May 29, 2015, the date of the Veteran’s VA examination which indicated the beginning of the worsening of his psychiatric disabilities. Service Connection—Legal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Hypertension In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that his claimed hypertension disability is the result of his active duty service, to specifically include as due to Agent Orange exposure. The Board notes that hypertension is not a condition presumptively related to Agent Orange exposure, however, the Veteran can still prove service-connection on a direct basis. The Board also notes that the Veteran has a current diagnosis of hypertension See February 2020 VA Hypertension examination. Therefore, the central issue that must be resolved is whether the Veteran’s current disability originated in service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Veteran has a currently diagnosed hypertension disability, competent medical evidence of record does not support that this disability was incurred in service or otherwise related to service. The Veteran’s STRs contain no complaints, treatment, or diagnoses of hypertension. There are no treatment records for these conditions while the Veteran was in service, and no medical examiner has given an opinion linking the Veteran’s current disability to his active duty service. The Veteran was first diagnosed with hypertension in 2008, approximately 36 years after his active duty service. In response to the Board’s July 2019 Remand, the RO provided the Veteran with a February 2020 VA Hypertension examination and an August 2020 addendum to that examination. The examiner opined that it is less likely than not (less than a 50 percent probability) that the Veteran’s hypertension is etiologically related to his active duty service, to include as due to exposure to Agent Orange. The rationale provided was that the Veteran’s hypertension was not diagnosed until many years after service and is not a conceded condition of herbicide exposure. Further, the examiner indicated that there are other factors potentially responsible for the Veteran’s hypertension, including hereditary factors and obesity. The Veteran has provided multiple lay statements where he has stated that he believes his hypertension is etiologically related to his Agent Orange exposure while serving in Vietnam. The Board weighs the above-mentioned VA examination against the Veteran’s lay contentions that his hypertension and is due to service. While the Veteran is competent to testify to his symptoms, he is not competent to provide a medical opinion as to the etiology of his disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds the VA examination, which opined against a link between the Veteran’s currently diagnosed hypertension and his service to be of high probative value. Additionally, the Board again notes that the Veteran was not diagnosed with this condition until many years after he left active duty service. Thus, the probative evidence of record preponderates against the Veteran’s claim for service connection. In light of the above discussion, there is no evidence that the Veteran sought treatment for or was diagnosed with hypertension while in service, or within a year after service, and there is no medical opinion in the record linking his current disability to his active duty service, to include as due to Agent Orange exposure. Therefore, the claims must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. REASONS FOR REMAND Although the Board regrets further delay, remand is necessary to ensure compliance with previous remand directives and proper development. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). CAD As part of the July 2019 Board Remand, the RO was required to obtain a VA examination for the Veteran’s CAD disability. While the RO obtained a February 2020 VA Heart Conditions examination for the Veteran’s claimed disability, the Board finds it to be inadequate. In proffering their opinion, the VA examiner did not discuss the Veteran’s competent lay statements, nor did the examiner accurately comment on the Veteran’s medical history. Specifically, the examiner provided an interview based METs test and noted that the Veteran does not report any symptoms attributable to a cardiac condition with any level of physical activity. However, looking at the Veteran’s competent lay statements, he reported that he is unable to climb stairs and gets short of breath after walking short distances. Additionally, during his July 2019 Board hearing, the Veteran reported that he can walk 35 to 45 feet to his mailbox but it requires frequent stops. He further reported slight dizziness and having to stop/lean and rest after walking short distances. The examiner also incorrectly noted that the Veteran has never experienced congestive heart failure. However, looking at the Veteran’s medical records, lay statements, and even the previous September 2015 VA Heart Conditions examination, shows that the Veteran has experienced congestive heart failure. Based on the foregoing, the Board finds that a new VA examination and medical opinion is necessary to adequately assess the severity of the Veteran’s disability. TDIU The Board notes the issue of entitlement to a TDIU rating must be held in abeyance at this time, because this issue is intrinsically intertwined with the above-noted remanded issues. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, the Board notes that there is conflicting information in the record for when the Veteran stopped working. The Veteran has reported that he stopped working in 1991, however, other information in the record shows that the Veteran was fired in 2015, still working as of November 2018, and retired in December 2019. Therefore, the AOJ should undertake appropriate development to obtain any additional evidence pertinent to the TDIU claim, to include regarding the Veteran’s work history. The matters are REMANDED for the following action: 1. Afforded the Veteran a VA examination by an examiner who has yet to examine the Veteran, with sufficient expertise to fully assess the current degree of severity of the Veteran’s service-connected coronary artery disease. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, including the effect on occupational functioning. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed 2. Then, the AOJ should undertake any necessary development to obtain any additional evidence pertinent to the issue of TDIU, to include regarding the Veteran’s work history. Specifically, the AOJ should request that the Veteran complete and return an updated VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability. All records and responses received should be associated with the evidentiary record. Advise the Veteran and his representative that the Veteran may submit evidence documenting any attempts to obtain employment, to include the number and status of job applications filed, to include any rejection letters of employment. The Veteran may also submit evidence documenting any past or prospective marginal employment (employment secured or followed that resulted in earned annual income that did not exceed the poverty threshold for one person). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.