Citation Nr: 21002127 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-18 920A DATE: January 12, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for the service-connected posttraumatic stress disorder with cannabis abuse (herein after PTSD) prior to September 25, 2017, is denied. Entitlement to a 100 percent rating for the service-connected PTSD beginning on September 25, 2017, is granted. REMANDED Entitlement to service connection for hepatitis C, to include as due to the in-service herbicide exposure or as secondary to a service-connected disability, is remanded. Entitlement to service connection for a liver disorder other than hepatitis C, to include cirrhosis of the liver, including as due to the in-service herbicide exposure or as secondary to a service-connected disability, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to September 25, 2017, the Veteran’s service-connected PTSD was manifested as occupational and social impairment with reduced reliability and productivity due to symptoms of flattened affect, depressed mood, impaired judgment, anxiety, disturbances of motivation and mood, sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. Occupational and social impairment with deficiencies in most areas was not shown. 2. As of September 25, 2017, the Veteran’s service-connected PTSD has resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for the service-connected PTSD prior to September 25, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a 100 percent rating from September 25, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to July 1972. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from January 2012 and August 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In the January 2012 decision, the RO granted service connection for PTSD with cannabis abuse and assigned a 50 percent rating, effective June 21, 2010. In an April 2020 rating decision, the RO assigned a 70 percent rating for the service-connected PTSD, effective August 7, 2019. As higher ratings remain available throughout the appeal periods, this matter remains before the Board. This matter was previously before the Board in October 2018, at which time it was remanded for further development. Increased Ratings – PTSD Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  While a veteran’s entire history is reviewed when making a disability decision, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different findings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, the Veteran’s service-connected PTSD is currently evaluated pursuant to Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when there is 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.  A 70 percent 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); inability to establish and maintain effective relationships.  A 100 percent rating requires 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 use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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 rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shineski, 713 F.3d 112, 118 (Fed. Cir. 2013).  Here, the Veteran contends that he should be in receipt of an initial rating in excess of 50 percent for his service-connected PTSD prior to August 7, 2019, the date the Veteran’s rating was increased to 70 percent, and a rating excess of 70 percent on and thereafter. For the reasons discussed below, the Board finds that an initial rating in excess of 50 percent is not warranted for the period prior to September 25, 2017. As of September 25, 2017, this disability manifests as total occupational and social impairment, and a 100 percent rating is warranted from that day. This matter was previously before the Board in October 2018, at which time the Board remanded the matter to obtain outstanding and updated VA treatment records and a new examination based on the Veteran’s reports of worsening PTSD symptoms. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. As requested in the October 2018 remand, outstanding VA treatment records from the Vet Center in Springfield, Illinois, were associated with the claims file in June 2019. Updated VA treatment records were also added to the claims file, and an updated VA examination was obtained in August 2019. In this regard, the Board finds that there has been substantial compliance with the Board’s October 2018 remand directives. Stegall, 11 Vet. App. at 271. 1. Entitlement to an initial rating in excess of 50 percent for service-connected PTSD prior to September 25, 2017 For the period prior to September 25, 2017, two VA examinations are of record. In the November 2011 VA examination report, the examiner found that the Veteran’s psychiatric symptoms included depressed mood and chronic sleep impairment. The examiner further described diminished interest or participation in activities, feelings of detachment, avoidance, and hypervigilance. The examiner recorded the Veteran’s reports of strained relationships with his wife and children, as well as the Veteran’s emotional variability. The Veteran reported he avoids social interactions, experiences nightmares, and spends him time around his house and only sees a few friends during the week if they come to his house. The Veteran reported a significant history of substance abuse and continued weekly use of marijuana. The Veteran reported working various odd jobs since leaving the service and attempting to start his own business but struggling to pull it off. The Veteran indicated that he was sick often in the prior 10 to 12 years and had not sought employment because of his physical health condition. Suicidal ideation was not reported or indicated, and the examiner did not include behavioral observations in the examination report. The examiner concluded that the Veteran’s disability results occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran was seen again in June 2015. The examiner indicated that the Veteran’s psychiatric symptoms included depressed mood, anxiety, and chronic sleep impairment. The examiner further described problems with anger, feelings of detachment, diminished interest in activities, negative views, nightmares, avoidance, and a recent panic attack. The Veteran’s wife was present during the examination and added that the Veteran does not go to sleep until 6:00 a.m. and has anxiety attacks that result in him having to leave the grocery store or other public places, and that the Veteran is irritable and avoids leaving the house for activities, vacations, or to see extended family. The Veteran reported that he does not work and that he spends his days and nights “watching” and “freaking out,” which result in interference with sleep. The Veteran was noted to be appropriately dressed and groomed, but was observed to be quite emotional and tearful and, at one point during the examination, the Veteran needed a break after raising his voice, expressing profanity, and expressing his anger with the VA. Continued marijuana use was indicated and the examiner opined that the Veteran’s coping skills had decreased as his health concerns and social withdrawal had increased. The examiner concluded that the Veteran’s psychiatric disability results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Statements related to the Veteran’s symptoms and behavior are of record from July 2017 received from the Veteran’s wife, children, and a close friend. The Veteran’s friends and family expressed concern with the Veteran’s behavior, endorsing that he had withdrawn from most social interaction, did not typically leave the house, and seemed extremely depressed. They reported that his mood and behavior was not always appropriate to the situation, as he would sometimes express extreme anger a quick temper. Additionally, his friends and family expressed concern about offhand remarks the Veteran had made about how people would be better without him and that he has said things about harming himself when he gets very upset. Throughout this period, the Veteran was frequently seen for VA treatment and screened for mental health concerns. During those appointments, he continued to endorse feeling of hypervigilance, avoidance, and severe depression. He was upset and later reported having a panic attack during a February 2015 VA treatment visit and noted that this resulted in him leaving the VA facility before being seen by a provider. He routinely denied having any suicidal ideation. Based on the symptoms recorded throughout the period prior to September 25, 2017, the Board concludes that the Veteran’s symptoms more nearly approximate the criteria considered by the 50 percent rating and amount to occupational and social impairment with reduced reliability and productivity. While the Veteran’s family and friends reported concerns about the Veteran alluding to or expressing feelings of suicidal ideation, the Board finds that these statements are less persuasive than the reports from the Veteran himself during his VA examinations and in his various VA treatment visits. The Veteran, when directly asked, denied any passive suicidal ideation or feelings related to such, even when he experienced a panic attack at a VA facility. While the VA examiners indicated a lower level of occupational and social impairment, the Board finds that the Veteran’s symptoms have been most in line with the 50 percent rating for this period. The record reflects the Veteran’s increased anger, disturbances in motivation and mood, social isolation, irritability, and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is not warranted because occupational and social impairment with deficiencies in most areas was not shown. While the Veteran’s relationships with his family and friends were strained, he was still able to participate in those relationships. The Veteran’s judgment was not shown to be impaired, and he did not report suicidal ideation during his VA treatment visits, during his examination, or in his statements of record. Although he reported an experience with a panic attack, near-continuous panic or depression was not shown, and he did not report any difficulties with concentration or obsessional rituals. Based on the evidence of record, the Board finds that the Veteran’s symptoms during the period prior to September 25, 2017, more nearly approximate the 50 percent rating, as his symptoms resulted in occupational and social impairment with reduced reliability and productivity. Thus, the Board finds that an initial rating in excess of 50 percent for this period is not warranted. 2. Entitlement to a 100 percent rating on and after September 25, 2017 For the period beginning September 25, 2017, VA and private examinations are of record. A private disability benefits questionnaire (DBQ) and narrative are of record from September 2017. In the DBQ, the examiner found that the Veteran’s psychiatric symptoms included the following: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short- and long-term memory; flattened affect; speech intermittently illogical, obscure or irrelevant; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner recorded the Veteran’s strained relationship with his wife and children, and the Veteran reported that he is isolated and withdrawn. The Veteran reports that he rarely leaves the home and that, because he is anxious around people, he avoids crowds and reports having intimacy issues. The Veteran reported that he is hypervigilant and easily startled. The Veteran continued to report chronic sleep impairment and nightmares and notes that he continues to self-medicate with marijuana. The examiner noted that the Veteran has not worked and reports that he would not be able to sustain employment due to the social and work problems that would stem from his PTSD, to include his desire to remain isolated, his irritability, and his difficulty concentrating. In an additional narrative provided with the DBQ, the examiner noted that the Veteran was very anxious and fidgeting during the examination and that he was rambling quite a bit and struggled to listen and stay on topic. The Veteran reported that he only does very minimal personal hygiene when he has to, and he does not attend any family activities or social events outside of his home, resulting in his estrangement from relatives including his own children. The examiner concluded that the Veteran’s disability results occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran was accorded a new VA examination in August 2019 following the Board’s October 2018 remand. The examiner indicated that the Veteran’s psychiatric symptoms included the following: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression; chronic sleep impairment; 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 a work like setting; suicidal ideation; impaired impulse control; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran was observed to be alert and oriented, but he appeared to be in distress and reported he was anxious and restless for days leading up to his examination. He reported passive suicidal ideation without plan or intention, and his affect was noted to be constricted and his mood was depressed. Additional symptoms of irritable behavior, hypervigilance, problems with concentration, and feelings of estrangement from others were noted. The Veteran reported it is difficulty to be around groups of people, even his extended family, and he is fearful something will upset him and cause him to lash out at people around him. Related to his occupational history, the Veteran reported he has not worked for years and that he would blow up at people and become confrontational. The Veteran reported he does not enjoy the hobbies he used to enjoy and that is feels depressed and hopeless. He reported fear of admitting to past suicidal ideation because he feared losing his freedom, but reported that he feels like the world would be better off without him. The examiner concluded that the Veteran’s PTSD results in occupational and social impairments with deficiencies in most areas. The Veteran’s examinations demonstrate symptoms consistent with a 100 percent rating beginning September 25, 2017. The Veteran was observed in both private and VA examinations to have symptoms such as an inability to establish and maintain effective relationships, an inability to perform activities of daily living (including maintenance of minimal personal hygiene), and suicidal ideations. Based on the symptoms recorded beginning September 25, 2017, the Board concludes that his symptoms more nearly approximate the criteria considered by the 100 percent rating and amount to total occupational and social impairment.  While the September 2017 private examiner and August 2019 VA examiner both indicated a lower level of occupational and social impairment, the Board accords the Veteran the benefit of the doubt in finding that his symptoms have been suggestive of a higher level of impairment than indicated by the examiners and finds that these symptoms are most consistent with the 100 percent rating criteria. Symptoms of gross impairment in thought processes or communication, suicidal ideation, memory loss, and intermittent inability to perform activities of daily living, especially, indicate that the Veteran’s impairment is higher than that indicated by the examiners. Accordingly, the Board concludes that the Veteran’s symptoms during the period beginning September 25, 2017, more nearly approximate the 100 percent rating, as his symptoms result in a total occupational and social impairment. REASONS FOR REMAND 1. Entitlement to service connection for hepatitis C, to include as due to in service herbicide exposure or secondary to a service-connected disability In the October 2018 remand, the Board acknowledged the Veteran’s reports of using shared needles for heroin use while in Vietnam and of experiencing stress and mental anguish related to his service (which caused him to act in that manner to cope). The Board noted that the Veteran has been service-connected for PTSD based on his experiences in Vietnam, and, accordingly, VA has conceded that the Veteran was exposed to stressful events during service. The Board requested that the RO obtain a VA opinion addressing whether the Veteran’s current hepatitis C is related to his conceded in-service stress and, specifically, whether his drug use was related to that in-service stress (now service-connected PTSD). No examination or opinion addressing the question of the Veteran’s in-service PTSD and resultant drug use was obtained. An August 2019 opinion only addressed whether the Veteran’s PTSD is related to his service, even though the Veteran is already service connected for PTSD. A liver conditions examination and opinion were obtained in July 2019, although the examination report was finalized and the opinion was provided in August 2019. Regarding the Veteran’s hepatitis C, the examiner did not clearly address the etiology of the Veteran’s condition. The examiner only noted that the Veteran’s hepatitis C was first detected in 2002, thirty years after his discharge from service and that a nexus was not established. The examiner failed to address the Veteran’s contentions regarding his hepatitis C as directed in the October 2018 Board remand, and the examiner failed to consider the other reported risk factors the Veteran had regarding this condition. Specifically, a February 2018 VA treatment note recorded the Veteran’s risk factors for hepatitis C which included his status as a Vietnam Veteran, exposure to other veterans’ blood while in the military, and multiple sex partners in addition to his reported intravenous drug use. The Board finds that, given the inadequacies of the examination and opinion obtained and the failure to obtain the requested opinion regarding the Veteran’s PTSD as it relates to his eventual hepatitis C diagnosis, there has not been substantial compliance with the Board’s October 2018 remand. Accordingly, corrective action is necessary. On remand, an opinion should be obtained to address whether the Veteran’s conceded in-service stressors (resulting in his now service-connected PTSD) prompted him to cope with drug use—and whether the Veteran’s hepatitis C was otherwise related to his service, to include as due to his in-service herbicide exposure or as secondary to his service-connected PTSD. 2. Entitlement to service connection for a liver disorder other than hepatitis C, to include cirrhosis of the liver, including as due to in-service herbicide exposure or secondary to a service-connected disability In the October 2018 remand, the Board noted that the Veteran claimed his cirrhosis of the liver was secondary to his hepatitis C. The Board noted that a June 2012 ultrasound revealed multiple hyperechoic liver lesions, and directed the RO to obtain an opinion as to whether the Veteran’s disability is related to his service, to include whether such is related to his presumed in-service exposure to herbicides. An examination and opinion were obtained in July 2019, although the examination report was finalized and the opinion was provided in August 2019. The examiner indicated that the Veteran did not have cirrhosis of the liver. The examiner opined that the Veteran’s hepatitis C did not cause or aggravated any cirrhosis of the liver as no cirrhosis was indicated. It is unclear, given that the Veteran’s VA treatment records do document a medical history of cirrhosis and liver disease, whether the Veteran does not have cirrhosis or if the examiner failed to consider the Veteran’s prior treatment records in reaching this determination. See August 2010 VA Treatment Note. Additionally, the examiner did not address the Veteran’s June 2012 ultrasound findings of multiple hyperechoic liver lesions or whether this condition is related to his service or caused or aggravated by his hepatitis C. Given that the development conducted following the October 2018 Board remand is inadequate and failed to adequately address the evidence of record or address the nature of the Veteran’s disability, the Board finds there has not been substantial compliance with the prior remand directives. On remand, a new examination and opinion should be obtained to clarify the nature of the Veteran’s liver disability, to include addressing whether the Veteran has a diagnosis of cirrhosis. The examination should address the etiology of any such liver disability, to include his claimed cirrhosis and the documented multiple hyperechoic liver lesions, and address whether such is related to his military service, to include as due to his in-service herbicide exposure or as secondary to his hepatitis C. 3. Entitlement to a TDIU As the grant of increased and staged ratings for the Veteran’s service-connected PTSD with cannabis use and the remand of the claims for service connection for hepatitis C and service connection for cirrhosis of the liver could affect the claim for a TDIU, the Board finds that these issues are inextricably intertwined and that a decision on the TDIU claim at this time would be premature. Harris v. Derwinski, 1 Vet. App. 180 (1991) Accordingly, these matters are REMANDED for the following action: Schedule the Veteran for an appropriate examination to determine the nature and etiology of any liver disorder he may have, to include hepatitis C and the cirrhosis of his liver. The examiner should review the claims file and indicate such on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the report. After a review of the claims folder, as well as an interview with and an examination of the Veteran, the examiner is asked to do the following: a. Identify/diagnose and clarify the nature of the Veteran’s liver disability(ies), to include his hepatitis C and cirrhosis, that presently exists or that has existed during the appeal period. b. Opine whether his hepatitis C, cirrhosis, and/or any other diagnosed liver disability is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, to include whether such is due to his in service herbicide exposure or is otherwise consistent with his reports of various in-service events (to include in-service exposure to other veterans’ blood and multiple sex partners). c. Opine whether the Veteran’s conceded in service stressors (the cause of his now service-connected PTSD) resulted in his drug usage during service. In this regard, the examiner is advised that VA has conceded that the Veteran was exposed to stressful events during his service (and that such conceded in-service stressors are the cause of his now service-connected PTSD). In answering this question, the examiner should address the Veteran’s competent and credible assertions in this regard. d. If it is found that the Veteran’s in-service drug usage was caused by his in-service stressors, the examiner is asked to address whether the Veteran’s hepatitis C, cirrhosis, and/or any other diagnosed liver disability are related to this drug usage. In addressing hepatitis C in particular, the examiner should address the February 2018 VA treatment note finding of the Veteran’s risk factors for hepatitis C that included his status as a Vietnam Veteran. e. Opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed liver disorder, to include hepatitis C, cirrhosis, and/or any other diagnosed liver disability) was (a) caused, or (b) aggravated (worsened), by his service-connected PTSD. f. Opine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed liver disorder other than hepatitis C was (a) caused, or (b) aggravated (worsened) by his hepatitis C. In providing this opinion, the examiner is asked to consider specifically the Veteran’s contentions. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.