Citation Nr: 21063558 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 15-03 140 DATE: October 14, 2021 ORDER Entitlement to service connection for ischemic heart disease, to include coronary artery disease, is granted. Entitlement to service connection for diabetes mellitus is granted. Prior to January 7, 2019, entitlement to a disability rating of 70 percent, but no higher, for panic disorder with agoraphobia is granted. From January 7, 2019, entitlement to a disability rating in excess of 70 percent for panic disorder with agoraphobia is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran served near the Korean demilitarized zone (DMZ) between August 8, 1971 and August 31, 1971. 2. The Veteran has a diagnosis of coronary artery disease. 3. The Veteran has a diagnosis of diabetes mellitus, type II. 4. Prior to January 7, 2019, the Veteran's panic disorder with agoraphobia was productive of social and occupational impairment with deficiencies in most areas. 5. Throughout the period on appeal, the Veteran's panic disorder with agoraphobia has not been productive of total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for coronary heart disease have been met. 38 U.S.C. §§ 1110, 1116, 1116B, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1116, 1116B, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Prior to January 7, 2019, the criteria for a 70 percent disability rating, but no higher, for panic disorder with agoraphobia were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9412. 4. From January 7, 2019, the criteria for disability rating in excess of 70 percent for panic disorder with agoraphobia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9412. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In April 2018, the Veteran testified at a videoconference hearing before the Board. A copy of the hearing transcript has been associated with the claims file. The issues on appeal were remanded by the Board of Veterans' Appeals (Board) for additional development in June 2018. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A claim for TDIU has been raised in relation to the appeal for a higher rating for the Veteran's service-connected panic disorder with agoraphobia; therefore, entitlement to a TDIU has been added to the issues on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 1. Entitlement to service connection for ischemic heart disease, to include coronary artery disease The Veteran seeks entitlement to service connection for ischemic heart disease due to exposure to herbicides during his service in Korea. In July 2014, the Veteran stated that he arrived at Camp Casey as a member of the 702nd Maintenance Battalion, 2nd Infantry Division on August 8, 1971 and completed training there for two weeks. The Veteran stated that during that time he served along the perimeter of the base. He stated that after he left Camp Casey he served at other bases in Korea until April 1972. The Veteran testified that as part of his service in a mobile support unit that he served near the DMZ providing support for trucks and vehicles that had broken down. Hearing Testimony, pp. 12-14. Service connection may be established on a presumptive basis for certain enumerated diseases listed at 38 C.F.R. § 3.309 (e) if a Veteran was exposed to an herbicide agent, such as Agent Orange, during service. Ischemic heart disease is one of the listed diseases presumed to be due to Agent Orange exposure, absent affirmative evidence to the contrary. See 38 U.S.C. § 1116 (a)(1); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Although Veterans who served in Vietnam during the Vietnam era are presumed to have been exposed to herbicide agents, the Veteran in this case served in Korea, as discussed below. There is a limited presumption of exposure to herbicide agents, such as Agent Orange, for Veterans who served in Korea near the DMZ during the period beginning on September 1, 1967 and ending on August 31, 1971. Prior to January 1, 2020, the presumption of in-service herbicide exposure in Korea was limited to certain Veterans who served in Korea as part of a unit that, as determined by the Department of Defense, operated near the Korean DMZ (in an area where herbicide agents were known to have been applied) between April 1, 1968 and August 31, 1971. 38 U.S.C. § 1116B; 38 C.F.R. § 3.307 (a)(6)(iv). However, the Blue Water Navy Vietnam Veterans Act, later codified at 38 U.S.C. § 1116B, extended the presumption of herbicide agent exposure, such as Agent Orange, to Veterans who, during active military, naval, or air service, served in or near the Korean DMZ during the period beginning on September 1, 1967 and ending on August 31, 1971. See 38 U.S.C. § 1116B (effective January 1, 2020). The Veteran's DD-214 Form shows that the Veteran was a member of the 702nd Maintenance Battalion, 2nd Infantry Division and served in Korea. The Veteran's service treatment records also reveal that he was treated at Camp Stanley in Korea in August 1971. In making all determinations, the Board must fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; "competent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge." See Layno. In this case, the Veteran has attested to facts about where he was stationed during his military service and the nature of his duties while in Korea. This is information that the Veteran has personal knowledge of and is derived from his own observations. The information from the Veteran's service treatment records correspond to the Veteran's statements regarding his service in Korea in August 1971 and the personnel records associated with the claims file support the Veteran's reports of his duties while serving with the 702nd Maintenance Battalion, 2nd Infantry Division. The Board, therefore, finds that the lay statements of the Veteran attesting to his duties near the Korean DMZ are supported by additional evidence of record and are found to be competent and credible. Based upon this competent and credible evidence, the Board finds that the Veteran served in Korea near the DMZ during the period beginning on September 1, 1967 and ending on August 31, 1971. As such, it is presumed that during such service the Veteran was exposed to herbicide agents during his active service. 38 U.S.C. § 1116, 1116B. The Veteran's October 2012 VA examination provided a current diagnosis of coronary artery disease during the appeal period. Coronary artery disease is a type of ischemic heart disease that can be presumed to be related to the Veteran's conceded exposure to herbicide agents in service. Accordingly, the Veteran's claim for entitlement to service connection for coronary artery disease is granted. 38 U.S.C. § 1116, 1116B, 5107(b); 38 C.F.R. § 3.102, 3.307(a)(6)(iv), 3.309(e); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for diabetes mellitus The Veteran has also contended that he suffers from diabetes mellitus due to exposure to herbicide agents in Korea. Service connection may be established on a presumptive basis for certain enumerated diseases if a Veteran was exposed to an herbicide agent, such as Agent Orange, during service. Diabetes mellitus is one of the listed diseases presumed to be due to Agent Orange exposure, absent affirmative evidence to the contrary. See 38 U.S.C. § 1116 (a)(1); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). As discussed above, the Veteran's in-service exposure to herbicide agents in Korea in August 1971 has been conceded. The Board notes that the 2012 VA examiner diagnosed the Veteran with impaired fasting glucose rather than diabetes. The examiner stated that the Veteran had not met the diagnostic criteria for Type II diabetes as he did not have two fasting blood sugar tests of 126 or higher and he did not have two A1C tests of 6.5% or higher. The evidence of record, however, indicates that the Veteran does have a diagnosis of diabetes during the period on appeal. Subsequently, the Veteran was seen in May 2013 with a diagnosis of well-controlled diabetes mellitus. It was reported that he had an A1C test of 6.9 in April 2013. The Veteran also reported that he had been diagnosed with diabetes during a March 5, 2021 pre-surgery assessment. Glucose test results from February 16, 2021 also indicate multiple A1C tests in excess of 6.5 since December 2016. The Board finds that the weight of the probative evidence indicates a diagnosis of diabetes mellitus during the period on appeal. Therefore, the Board finds that service connection for diabetes mellitus due to in-service exposure to herbicide agents is warranted. 38 U.S.C. § 1116, 1116B, 5107(b); 38 C.F.R. § 3.102, 3.307(a)(6)(iv), 3.309(e). 3. Entitlement to a disability rating for panic disorder with agoraphobia in excess of 10 percent prior to January 7, 2019; and in excess of 70 percent, thereafter Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran contends that the manifestations of his service-connected panic disorder with agoraphobia warrant a disability rating in excess of 10 percent prior to January 7, 2019, and in excess of 70 percent, thereafter. Upon review, the Board finds that a 70 percent disability rating, but no higher, is warranted for the Veteran's psychiatric disorder throughout the period on appeal. Under the General Formula for Mental Disorders, a 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. 38 C.F.R. § 4.130. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. 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. Id. 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. Id. 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. Id. Under the General Formula for Mental Disorders, 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 (2017); 38 C.F.R. § 4.130. The symptoms listed in the General Rating Formula are examples, not an exhaustive list and it is not required to find the presence of all, most, or even some of the enumerated symptoms. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate rating to be assigned for a service-connected mental disorders, the focus is on how the frequency, severity, and duration of the symptoms affect the Veteran's occupational and social impairment, rather than on an absence of particular symptoms listed in the schedular criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In October 2012, the Veteran underwent a VA psychological evaluation regarding his service-connected psychiatric disorder. After interviewing the Veteran and reviewing the claims file, the VA examiner opined that the Veteran's panic disorder with agoraphobia resulted in occupational and social impairment causing mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication. The examiner, however, noted the Veteran's reports that his anxiety ruined his life. He reported a need to escape from enclosed places and that he was anxious riding in the elevator prior to the exam. The Veteran reported his preference to avoid crowds and that he had quit many jobs (2-3 per year) because of his anxiety and fear of heights, enclosed places, crowds. The examiner noted that the Veteran suffers from symptoms that included: anxiety and panic attacks that occur weekly or less often. In November 2013, the Veteran was seen for a mental health consult at the Clarksburg VA Medical Center (VAMC). Veteran stated that he has not felt well since coming home from his deployment. He states, "I have not slept since I came home. I always feel down and irritable. I cry easily and I have these spells where I am so anxious that I feel like I am going to jump out of my skin. I have nightmares and my wife has awoken me on numerous occasions as I was hitting things in my sleep. I was always on guard and I avoid crowds because my symptoms get worse. I have so much fear now. When I saw my enemies die, it changed my life. I can't get this junk out of my mind." He also complained of extreme forgetfulness and states, "I had to retire because of it. The problem was affecting my job." He denied audio and visual hallucinations. In January 2019, the Veteran underwent another VA psychiatric evaluation. The examiner noted that the Veteran had been married for over 50 years and has four adult children and seven grandchildren. He indicated he has a "happy marriage" and supportive relationships with his kids and grandkids. The Veteran indicated that he has not worked since 2012. He had worked for years as an electrician; however, he stated that he would not hold a job for long. He estimated he had over 200 jobs, noting he once worked three different jobs in one week. Regarding the Veteran's current mental health problems and treatment, the examiner stated that the Veteran has not sought mental health treatment. He is apprehensive about talking to mental health providers because he fears he will be "locked up" like he was in 1972. He said he has recently felt increasingly hopeless. His worst symptom was reported to be panic attacks, which he has three to four times per week, noting he sometimes has that many in a day. He reported that when he feels very depressed, he will go to his cabin to be alone and stay there for one to two weeks. The examiner opined that the Veteran's condition caused occupational and social impairment with reduced reliability and productivity due to symptoms that included: depressed mood; anxiety; panic attacks more than once per week; impaired judgment; 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; and suicidal ideation. The examiner stated that no new diagnoses were present during this examination. While panic disorder and agoraphobia are coded as separate diagnoses under the DSM-5, that this represents a change for DSM compliance, but the fundamental symptoms of the Veteran's diagnosis remain unchanged. Upon review of the evidence of record, the Board finds that the Veteran's impairment caused by his psychiatric symptoms has more nearly approximated social and occupational impairment with deficiencies in most areas throughout the period on appeal. While the 2012 examiner opined that the Veteran's condition only resulted in in occupational and social impairment causing mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication, the Board finds this finding to be inconsistent with the 2012 examiner's report that the Veteran's anxiety around crowds, heights, and enclosed places had resulted in him leaving 2-3 jobs per year. Further, the Board finds probative the reports provided by the mental health provider from the Clarksburg VAMC in November 2013 that the Veteran suffers from constant anxiety and extreme forgetfulness. The Board also finds probative the report of the 2019 VA examiner that the fundamental symptoms of the Veteran's diagnosis remain unchanged since his prior examination. The Board finds the evidence, when taken together, most nearly approximates a 70 percent rating under the General Formula for Mental Disorders throughout the period on appeal. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9412. The Board finds, however, that at no point during the appeal did the Veteran exhibit total occupational and social impairment. Particularly, the Board notes that the evidence does not demonstrate or more nearly approximate total social impairment during the period on appeal. The evidence indicates that the Veteran maintains his marriage with his wife that he has described as "happy" and that he has close relationships with his four adult children. While the Veteran reported that he had to stop working in 2012 due to his memory problems and anxiety, even sympathetic review of the record does not reveal evidence that there is no remaining function. Additionally, the record does not indicate persistent delusions or hallucinations, grossly inappropriate behavior, an inability to maintain personal hygiene or regularly perform other activities of daily living. Therefore, the Board finds that the preponderance of the evidence weighs against a finding of total occupational and social impairment. Accordingly, the Board finds that the criteria for a rating in excess of 70 percent for panic disorder are not met during the period on appeal. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. During the pendency of the Veteran's claim for a higher rating for panic disorder with agoraphobia, the evidence of record raised the issue of entitlement to a TDIU. During the Veteran's 2018 Board hearing, the Veteran reported that his symptoms related to his panic disorder "got so bad that I just had to take early retirement." When a request for a TDIU is made during the pendency of a claim for an increase, it is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating for a disability as part of the initial adjudication of the claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). As there is evidence of unemployability due to the Veteran's panic disorder during the appeal period, the Board finds that the issue of entitlement to a TDIU has been raised as part of the increased rating claim on appeal. The matters are REMANDED for the following action: The AOJ should send VCAA notice for the claim for entitlement to a TDIU and conduct any appropriate related development, to include requesting that the Veteran submit a formal TDIU claim form (VA Form 21-8940). K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.