Citation Nr: 21002826 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 20-15 850 DATE: January 15, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for a heart disability, diagnosed as congestive heart failure (CHF), atrial fibrillation, non-ischemic cardiomyopathy, and an implanted pacemaker, is granted. Entitlement to service connection for residuals of a stroke is granted. Entitlement to an initial disability rating of 70 percent, but no higher, for illness anxiety disorder and alcohol use is granted. Entitlement to an effective date earlier than May 11, 2017 for the award of service connection for illness anxiety disorder and alcohol use is denied. The Veteran’s appeal regarding entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. FINDINGS OF FACT 1. The Veteran’s service-connected herpes proximately caused his hypertension. 2. The Veteran’s hypertension proximately caused his heart disability. 3. The Veteran’s heart disability and illness anxiety disorder and alcohol use proximately caused his stroke. 4. The Veteran’s illness anxiety disorder with anxiety and alcohol use was manifested by occupational and social impairment in most areas. It was not manifested by total social impairment. 5. The Veteran separated from active duty in February 1993. 6. The Veteran submitted a formal service connection claim for illness anxiety disorder and alcohol use on May 11, 2017. Prior to May 11, 2017, the Veteran had not filed a service connection claim for any acquired psychiatric disorder with VA. Service connection was awarded for illness anxiety disorder with anxiety and alcohol use from May 11, 2017. 7. On October 5, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdrawal the issue of entitlement to TDIU. CONCLUSIONS OF LAW 1. The criteria to establish service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria to establish service connection for a heart disability, diagnosed as CHF, atrial fibrillation, non-ischemic cardiomyopathy, and an implanted pacemaker, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria to establish service connection for residuals of a stroke have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for an initial disability rating of 70 percent, but no higher, for illness anxiety disorder with anxiety and alcohol use have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.126, 4.130, Diagnostic Code 9425. 5. The criteria for an effective date earlier than May 11, 2017 for the award of service connection for illness anxiety disorder with anxiety and alcohol use have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 6. The criteria for withdrawal of the appeal by the Veteran regarding entitlement to TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 to February 1993. He appeals a May 2018 rating decision by the Agency of Original Jurisdiction (AOJ) denying service connection for a heart condition, hypertension, and residuals of a stroke. He also appeals a September 2017 rating decision granting service connection for illness anxiety disorder and assigning a 50 percent disability rating effective May 11, 2017. He appeals both the rating and effective date assigned for the acquired psychiatric disorder. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2010, the Board also remanded the issue of entitlement to an initial, compensable evaluation for herpes. However, current review of the claims file reveals that the AOJ has not completed development or transferred this appeal to the Board; accordingly, such issue is not currently before the Board. Additionally, the Veteran has a medical reimbursement case pending before the Board. However, medical reimbursement appeals are issued in separate decisions from compensation appeals because they originate from a different AOJ. As such, the Board’s decision on the medical reimbursement appeal will be subject to a subsequent Board decision, if otherwise in order. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Hypertension The Veteran has hypertension. See March 2018 VA medical opinion. He is service connected for herpes. Accordingly, the first and second Wallin elements are met. A VA examiner opined that the Veteran’s hypertension was at least as likely as not proximately due to or the result of the Veteran’s service-connected herpes. Id. She cited the Veteran’s long-standing hypertension and reasoned that “stress from military service and a diagnosis of [herpes] during service, likely caused stress, which caused his [hypertension].” Id. Thus, the March 2018 VA examiner’s medical opinion provided a causal link between the Veteran’s service-connected herpes and hypertension in this particular case. Accordingly, service connection for hypertension is granted. 2. Heart The Veteran has CHF, atrial fibrillation, non-ischemic cardiomyopathy, and an implanted pacemaker. See, e.g., February 2018 VA examination report. Based on the Order above, the Veteran is service connected for hypertension. He is also service connected for illness anxiety disorder and alcohol use disorder. (Emphasis added). Accordingly, the first and second Wallin elements are met. A February 2018 VA examiner found the Veteran’s hypertension caused his heart problems. See February 2018 VA examination report. Another VA examiner found the Veteran’s alcohol use caused his heart problems. See February 2017 VA examiner. Therefore, the Board finds a causal link between his hypertension, alcohol use, and heart problems in this particular case. Accordingly, service connection for a heart disability, diagnosed as CHF, atrial fibrillation, non-ischemic cardiomyopathy, and an implanted pacemaker, is granted. 3. Residuals of a Stroke The Veteran has residuals of a stroke. See, e.g., February 2017 VA examination report. Based on the Order above, the Veteran is service connected for a heart disability, to include atrial fibrillation. Accordingly, the first and second Wallin elements are met. Two VA examiners agree that atrial fibrillation caused the Veteran’s stroke. See, e.g., February 2018 VA medical opinion; February 2017 VA examination report. Therefore, the Board finds a causal link between the Veteran’s heart disability and residuals of his stroke in this particular case. Accordingly, service connection for residuals of a stroke is granted. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran’s illness anxiety disorder and alcohol use is rated under 38 C.F.R. § 4.130, Diagnostic Code 9425. The rating criteria provide that a 50 percent rating is warranted for 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; difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9425. 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Considering all relevant evidence, the Board finds that a disability rating of 70 percent, but no higher, for the Veteran’s service-connected illness anxiety disorder and alcohol use is warranted. Both a VA examiner and the Veteran’s private expert agree that he has occupational and social impairment with reduced reliability and productivity. See, e.g., September 2017 VA examination report; May 2017 E.Z. disability benefits questionnaire (DBQ). Nevertheless, E.Z. found the Veteran exhibited the following symptoms: (1) depressed mood; (2) anxiety; (3) panic attacks more than once a week; (4) chronic sleep impairment; (5) disturbances of motivation and mood; and (6) difficulty adapting to stressful circumstances, including work or a work like setting. See May 2017 E.Z. DBQ. He also exhibited suspiciousness and impairment of short and long-term memory. See September 2017 VA examination report. Additionally, treatment records from March 2017 note that the Veteran expressed anxious mood, excessive worrying, irritability, panic attacks, insomnia, and crying spells. See March 2017 C.P.C. treatment record. Further, treatment records from August 2018 note panic attacks once a week depression, and suicidal ideation. See May 2019 Veteran brief (emphasis added). These symptoms are consistent throughout the record and indicate that the Veteran’s anxiety impacts his memory, concentration, ability to adapt to change, and ability to handle workplace stress. Id. Thus, impairment in most areas is shown. However, the Veteran has not exhibited total social impairment. While he spends most of his time at home, he has friends through AA and “this is his primary social outlet.” See September 2019 VA examination report; see also May 2019 Affidavit. He plays golf and has friends with whom he maintains regular contact. See November 2016 P.C. evaluation report. Further, the Veteran’s thought process and communication have been largely unimpaired. Despite evidence of his anger, the evidence indicates that the Veteran has been fully oriented, in control, and coherent throughout the appeal period. The record has shown anger and irritability, but not to such an extent that the Veteran has been in persistent danger of hurting himself or others. Here, the Veteran has been able to perform activities of daily living to include personal hygiene requirements. Importantly, the Veteran has had impaired but intact memory, intact judgment, and the capacity for insight. Further, the Veteran remembers his own name. While the Veteran does exhibit some symptoms contemplated in total occupational and social impairment, the symptomatology is not of sufficient severity, frequency, and duration to result in a rating higher than 70 percent. Hence, the criteria for a finding of a 100 percent evaluation are not met. Based upon Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran’s symptoms remained constant at 70 percent levels for his illness anxiety disorder with anxiety and alcohol use, staged ratings are not warranted. Thus, the evidence is in equipoise and the Board finds that the criteria for an increased rating of 70 percent, but not higher, for illness anxiety disorder with anxiety and alcohol use have been met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for service connection will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). If a claim is filed within a year of separating from active service, the effective date is the day following separation from active service. 38 C.F.R. § 3.400(b)(2). The Veteran seeks an effective date earlier than May 11, 2017 for the award of service connection for illness anxiety disorder with anxiety and alcohol use. However, a review of the claims file shows that the Veteran did not file either a formal or informal application for service connection for any acquired psychiatric disorder prior to May 11, 2017. Further, the Veteran separated from active duty in February 1993. As such, the AOJ has assigned the earliest possible effective date provided by law and an earlier effective date is not warranted. TDIU Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.205. In the present case, the Veteran has withdrawn the issue of entitlement to TDIU in writing. Thus, there remain no allegations of error of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review the appeal and the issue of entitlement to TDIU is dismissed. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Salazar, 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.