Citation Nr: 21063889 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 19-38 249 DATE: October 18, 2021 ORDER Service connection for residuals of hemorrhagic fever is denied. Service connection for a collar bone fracture as secondary to residuals of hemorrhagic fever is denied. Service connection for a sternum fracture as secondary to residuals of hemorrhagic fever is denied. An initial 70 percent rating for posttraumatic stress disorder (PTSD) from June 4, 2018 and continuing thereafter is granted. A total disability rating based on individual unemployability (TDIU) due to service-connected disorders effective June 4, 2018 is granted. FINDINGS OF FACT 1. The Veteran's dizziness and blackouts are not residuals of his in-service diagnosis of hemorrhagic fever and/or were not caused by hemorrhagic fever. 2. The Veteran's collar bone fracture was not caused or aggravated by residuals of a hemorrhagic fever. 3. The Veteran's sternum fracture was not caused or aggravated by residuals of a hemorrhagic fever. 4. With resolution of the doubt in his favor, for the entirety of the rating period on appeal, the Veteran's PTSD manifested as occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, suicidal ideation, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, difficulty in adapting to stressful circumstances, and the inability to establish and maintain effective relationships. 5. With resolution of the doubt in his favor, effective June 4, 2018, the Veteran's service-connected disorders precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria to establish service connection for residuals of hemorrhagic fever have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d). 2. The criteria to establish service connection for a collar bone fracture have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. 3. The criteria to establish service connection for a sternum fracture have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. 4. The criteria to establish an initial 70 percent rating for the entirety of the rating period on appeal for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411. 5. The criteria to establish a TDIU effective June 4, 2018 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1953 to December 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated November 2018 and August 2019 of the Portland, Oregon Regional Office (RO). In December 2020, the Board remanded the appeals to the RO for additional action. There was substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Residuals of hemorrhagic fever The Veteran asserts that his in-service hemorrhagic fever caused his current dizziness and blackouts and/or that such symptoms are residuals of a hemorrhagic fever. The claim will be denied. In a service treatment record (STR) dated May 25, 1954, the Veteran reported frontal headaches, retroorbital pain aggravated by eye movement, fever, low back pain, abdominal discomfort, and dizziness since May 22, 1954. The Veteran was diagnosed with a hemorrhagic fever. STRs dated May 29, 1954; June 1, 1954; and June 7, 1954 reflect that the Veteran was "doing better," "much improved," "eating well now," and that he "ambulated today." A June 14, 1954 STR summarized that the Veteran became ill on May 22, 1954 with an acute febrile illness characterized by frontal headaches, retroorbital pain, chills, fever, low back pain, and abdominal discomfort. The diagnosis was hemorrhagic fever moderately severe. In the Veteran's December 1954 separation medical examination report, the service medical examiner noted hemorrhagic fever but no residuals were identified. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). In a March 2010 non-VA treatment record, the Veteran reported dizziness the previous summer and several days prior while skiing. A brain magnetic resonance imaging (MRI) revealed no acute intracranial abnormality and a brain angiogram revealed normal findings. A May 2010 non-VA treatment record reflects the Veteran's report of dizziness and a loss of consciousness in February 2010. A brain MRI revealed no acute intracranial abnormality and a brain angiogram revealed normal findings. The Veteran was diagnosed with probable episode of vasodepressor or vasovagal near syncope. In a February 2011 non-VA treatment record, the Veteran reported that his dizziness and blackouts "started about three years ago." The non-VA examiner indicated a possible epileptic seizure disorder. The Veteran is competent to report his observable symptoms and the onset of those symptoms three years previously. 38 C.F.R. § 3.159(a)(1). The Veteran is credible as to the onset of his dizziness and blackouts beginning three years previously. Fed. R. Evid. 803(4) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care); Rucker, 10 Vet. App. at 73. A March 2011 non-VA treatment record reflects the Veteran's report of a motor vehicle accident due to a syncopal episode. An April 2011 non-VA treatment record reflects the Veteran wearing a cardiac monitor for 15 days that revealed "sinus rhythm and sinus bradycardia with symptoms of dizziness." In a July 2011 non-VA treatment record, the Veteran reported recurrent dizziness and syncope resulting in a motor vehicle accident. The Veteran was diagnosed with recurrent syncope of unclear etiology and advised to undergo a cardiogram. In an August 2011 non-VA treatment record, the Veteran reported no syncope episodes since March 2011. In an April 2012 non-VA treatment record, a history of fainting was noted that had resolved. The Veteran was diagnosed with syncope of unclear etiology without recurrence. In a November 2014 VA treatment record, a review of neurological systems revealed "negative for dizziness." In a December 2014 VA treatment record, the Veteran denied dizziness. In a June 2018 statement, the Veteran reported dizziness and blackouts since service and attributes such symptoms as residuals of his in-service hemorrhagic fever. As noted, the Veteran is competent to report his observable symptoms; however, he is not competent, as a lay-person, to attribute dizziness and blackouts to a medical diagnosis of hemorrhagic fever. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report the onset of his symptoms, he is not credible in his account of having dizziness and blackouts since service because it is inconsistent with the highly probative STRs showing no residuals at service separation and the highly probative February 2011 non-VA treatment record reflecting the Veteran's report that his dizziness and blackouts "started about three years ago" approximately 2008. In December 2020, the Board found the October 2018 VA examination and medical opinion as to the Veteran's residuals of a hemorrhagic fever inadequate and remanded for an adequate VA examination and medical opinion. The October 2018 VA examination and opinion is therefore of low probative value and the claim was remanded. The June 2021 VA examiner opined that the Veteran's current dizziness and blackouts were not caused by the in-service diagnosis of hemorrhagic fever and/or residuals of hemorrhagic fever for several reasons. The examiner noted that the Veteran's in-service hemorrhagic fever resolved as evidenced by urinalysis laboratory findings between June 5, 1954 to June 8, 1954 and on June 16, 1954 showing normal findings for albumin and no residuals found at service separation. The Veteran's creatine laboratory findings were normal in December 2000, January 2002, September 2002, April 2003, and August 2019. Additionally, the examiner noted the Veteran's report that his dizziness began in 2008 that does not support a chronic residual of a disease that resolved in 1954. The VA examination and negative etiology opinion is highly probative because the examiner had an accurate and complete understanding of the Veteran's medical history and provided a medical conclusion with sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A preponderance of the evidence is against a finding that the Veteran's dizziness and blackouts were caused by the in-service diagnosis of hemorrhagic fever and/or that the Veteran's dizziness and blackouts were residuals of the hemorrhagic fever. In the Veteran's December 1954 separation medical examination report, the service medical examiner noted hemorrhagic fever but no residuals were identified. In a February 2011 non-VA treatment record, the Veteran reported that his dizziness and blackouts "started about three years ago." The June 2021 VA examiner opined that the Veteran's current dizziness and blackouts were not caused by the in-service diagnosis of hemorrhagic fever and/or residuals of hemorrhagic fever. Therefore, service connection is not warranted and the claim is denied. Collar bone fracture and sternum fracture Service connection shall be granted on a secondary basis under 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran asserts blacking out, as a residual of hemorrhagic fever, caused a motor vehicle accident resulting in a fractured collar bone and sternum. The Veteran has not asserted and the evidence does not raise a theory of direct service connection. Robinson v. Mansfield, 21 Vet. App. 545 (2008) (holding that VA is not required to raise sua sponte all possible theories of entitlement but must consider those bases reasonably raised either by the claimant or the evidence). During the June 2021 VA examination, the examiner noted a left collar bone fracture due to a motor vehicle accident in 2010 and a left clavicle malunion fracture initially diagnosed in March 2011. The claims will be denied because the Veteran's residuals of hemorrhagic fever are not service connected. 38 C.F.R. § 3.310; Mason v. Principi, 16 Vet. App. 129 (2002). A preponderance of the evidence is against a finding that the Veteran's fractured collar bone and sternum was caused or aggravated by his residuals of hemorrhagic fever. Significantly, the Veteran is not service-connected for residuals of a hemorrhagic fever. Therefore, service connection is not warranted and the claims are denied. Increased Rating Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. PTSD PTSD is evaluated under the General Rating Formula for Mental Disorders. A 50 percent rating is assigned 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 and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent evaluation is assigned 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); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is assigned 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. The U.S. Court of Appeals for the Federal Circuit has noted the "symptom-driven nature" of the General Rating Formula and that "a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, if the evidence shows that a Veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. In a November 2018 rating decision, the RO granted service connection for PTSD and assigned a 50 percent initial rating from June 4, 2018 and continuing thereafter. In late-November 2018, the Veteran submitted non-VA treatment records concerning his PTSD and in August 2019, the Veteran submitted a statement describing the severity of his PTSD symptoms. In an August 2019 rating decision, the RO denied an initial rating higher than 50 percent for the Veteran's PTSD. The appellate period is from June 4, 2018 because the claim for an initial rating higher than 50 percent from June 4, 2018 remained pending due to the Veteran's submission of new and material evidence within the one-year appellate period following the November 2018 rating decision. 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). In a June 2018 statement, the Veteran reported social isolation, paranoia, trouble with crowds, increased alcohol consumption, loss of friends, irritability, and sleep impairment. In an October 2018 statement, the Veteran reported irritability, impatience, anger, anxiety, chronic sleep impairment, and social isolation resulted in his third divorce. An October 2018 VA treatment record reflects the Veteran's trouble with anger and sleeping due to intrusive thoughts from service. During the October 2018 VA examination, the Veteran reported divorcing his third wife after 28 years in 2012 due to his anger. The Veteran cannot play golf due to physical limitations. He has an apartment but stays with family. The Veteran has a good relationship with family but has lost contact with friends. The Veteran sold cars for 20 years and denied any trouble. He retired in 1990 and is in receipt of social security benefits. The Veteran initially had psychiatric treatment in 2011 due to hospitalization from a suicide attempt. The VA examiner noted a June 2011 non-VA treatment record reflects "depression with recurrent suicide attempt and overdose." The examiner also noted that the evidence shows the Veteran attempting suicide at least twice in 2011. The Veteran denied any then-current suicidal ideation. The examiner indicated that the Veteran's 2011 depressive symptoms were symptoms of PTSD and although the Veteran has not had psychiatric treatment since 2011, he continued having depression, anxiety, nightmares, and intrusive symptoms. The June 2011 non-VA treatment record reflects the Veteran's suicide attempt resulting in hospitalization. Although the suicide attempt occurred before the appellate period, it is relevant to the claim for a higher initial rating because the VA examiner indicated that the Veteran's 2011 depressive symptoms were symptoms of PTSD. Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was "only entitled to disability compensation for the period after ... the date he filed his original claim for benefits," VA regulations still require the disability to be "evaluated in light of its whole recorded history"). The presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas and must be considered with other evidence. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The examiner observed the Veteran as alert and oriented to all spheres. The Veteran was appropriately dressed and well-groomed. The Veteran displayed an anxious and dysthymic mood with appropriate affect. His speech and thought process was normal. The Veteran denied hallucinations, delusions, suicidal ideation, and homicidal ideation. The Veteran's symptoms were depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner summarized the Veteran's total impairment as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. In an August 2019 statement, the Veteran reported trouble discussing his military experiences and getting angry over "things that I shouldn't be angry about." The Veteran also reported irritability, chronic sleep impairment, anxiety, trouble remembering people's names and places, trouble with crowds, and walking away from stressful situations. The Veteran indicated that his symptoms resulted in "family disharmony." In a September 2019 statement, the Veteran reported feeling well and that he plays golf and rides his bicycle. In a January 2020 VA treatment record, the Veteran reported riding his bicycle as exercise to avoid going to the gym to be around people. He also reported "too many arguments" due to his anxiety, depression, and anger. During the May 2021 VA examination, the Veteran reported a "breakdown" in 2011 resulting in a one-week hospitalization. The Veteran does not have a social group and has not remarried after his third divorce. The examiner observed the Veteran as oriented to all spheres and normal thought process. The Veteran denied hallucinations, delusions, and suicidal ideation. The Veteran's symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The examiner summarized the Veteran's total impairment as occupational and social impairment with reduced reliability and productivity. The Board will grant a 70 percent initial rating for the entirety of the rating period on appeal for PTSD based on the benefit-of-the-doubt doctrine. As noted, the Veteran's two instances of suicidal ideation in 2011 is relevant because the October 2018 examiner indicated that the Veteran's 2011 depressive symptoms were symptoms of PTSD. The Veteran has consistently reported and VA treatment records show the Veteran has near-continuous panic or depression affecting his ability to function independently and impaired impulse control as evidenced by the Veteran's getting angry over "things that I shouldn't be angry about." The Veteran has difficulty in adapting to stressful circumstances due to him walking away from stressful situations. The Veteran is not able to establish and maintain effective relationships due to losing friends as a result of his anger, irritability, and social isolation. Although the October 2018 and May 2021 VA examiners summarized the Veteran's total impairment as less severe than a 70 percent rating, the evidence reflects otherwise. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, a 70 percent initial rating is warranted and the claim is granted. A preponderance of the evidence is against a finding of an initial 100 percent rating for the entirety of the rating period on appeal for PTSD. The Veteran does not experience a gross impairment in thought processes or communication as evidenced by two VA examiners noting the Veteran's thought process as normal. The evidence does not show persistent delusions or hallucinations or grossly inappropriate behavior. Although the Veteran had suicidal ideation in 2011, he has consistently denied suicidal ideation since 2011 and the evidence does not show a persistent danger of hurting self or others. The Veteran is able to perform activities of daily living, including maintenance of minimal personal hygiene as evidenced by the Veteran's reports of consistent travel, exercising, and VA examiners noting the Veteran's appearance as well-groomed. The evidence does not show disorientation to time or place. Although the Veteran reported memory loss, there is no indication that the Veteran could not remember the names of close relatives, own occupation, or own name. Therefore, a 100 percent initial rating is not warranted and the claim is denied. TDIU In December 2020, the Board found the issue of entitlement to a TDIU raised by the record and remanded the claim for development. In rating decisions dated August 2021 and September 2021, the RO denied the claim of TDIU. However, the Veteran has re-raised the claim for a TDIU in connection with the claim for a higher initial rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran's service-connected disorders include PTSD rated 70 percent disabling from June 4, 2018 and continuing thereafter, tinnitus rated 10 percent from August 14, 2019 and continuing thereafter and bilateral hearing loss rated noncompensable from August 14, 2019 and continuing thereafter. The Veteran has met the schedular criteria under § 4.16(a). The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. Thus, the central question is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). During the October 2018 VA examination, the Veteran reported receiving social security benefits since 1990 and the examiner noted the Veteran's symptom of difficulty in establishing and maintaining effective work and social relationships. In an August 2019 statement, the Veteran reported trouble getting out of bed due to chronic sleep impairment and walking away from stressful situations. In August 2020, the Veteran underwent a non-VA vocational evaluation. The non-VA examiner opined that the Veteran's service-connected disorders impacted his ability to work, including in sedentary employment since June 2018 because the severity of the Veteran's PTSD symptoms rendered him incapable of sustaining adequate pace, productivity, and reliability. The examiner noted the Veteran could not meet these basic expectations from employers in a competitive labor market. In his November 2020 VA Form 21-8940, Application For Increased Compensation Based On Unemployability, the Veteran reported last working full time and that he was too disabled to work in November 2008. The Veteran attempted to obtain employment in September 2019 and October 2019 since becoming too disabled to work. The May 2021 VA examiner indicated that the Veteran could work in a sedentary environment with minimal stress and limited interpersonal contact due to the Veteran's trouble with anger and irritability. The Board will grant a TDIU effective June 4, 2018 based on the benefit-of-the-doubt doctrine. Although the May 2021 VA examiner indicated that the Veteran could work in a sedentary environment, the August 2020 non-VA examiner opined otherwise and the severity of the Veteran's PTSD symptoms, as reported by the Veteran and shown in the October 2018 VA examination, reflects that the Veteran's service-connected disorders impact his ability to work in any type of work environment. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, a TDIU is warranted and the claim is granted. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.