Citation Nr: 21069191 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-20 768 DATE: November 17, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for other specified trauma and stressor related disorder is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran's other specified trauma and stressor related disorder was manifested by 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. 2. The Veteran's hypertension is not shown to be etiologically related to his active service, to include as due to in-service herbicide exposure; and is not caused or aggravated by service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for other specified trauma and stressor related disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9499-9411. 2. The criteria for service connection for hypertension, to include as secondary to diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1965 to December 1967. During his period of service, he earned the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Combat Infantryman Badge, Expert Badge (Rifle), and Good Conduct Medal. This case was previously before the Board in May 2020, at which time the Board, in part, remanded the issues of entitlement to an increased disability rating for other specified trauma and stressor related disorder, as well as entitlement to service connection for an eye disability and hypertension for further development. Subsequently, by a March 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for glaucoma; thus, this issue is no longer for appellate consideration. 1. Entitlement to a higher rating for other specified trauma and stressor related disorder Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran's entire history is reviewed when assigning disability ratings. See generally 38 C.F.R. § 4.1. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). But where service connection has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Court has held that a Veteran may not be compensated twice for the same symptomatology as "such a result would overcompensate the Veteran for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a Veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran is currently assigned a 30 percent rating for his service-connected other specified trauma and stressor related disorder. He contends that a higher rating is warranted. The Veteran's other specified trauma and stressor related disorder is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9499-9411. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. The provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and 99. Here, the hyphenated diagnostic code indicates that the Veteran's acquired psychiatric disability is rated as analogous to a mental disability (Diagnostic Code 9499) under the criteria for posttraumatic stress disorder (Diagnostic Code 9411). 38 C.F.R. § 4.130. The General Rating Formula provides that a 30 percent rating is warranted where 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). A 50 percent rating is warranted where 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is 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 is warranted where there is 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 the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated 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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." The Veteran appeared for a VA posttraumatic stress disorder (PTSD) examination in August 2015. The examiner diagnosed other specified trauma and stressor related disorder, characterized by nightmares, insomnia with no significant trauma related avoidance, or trauma related changes in mood and cognition. The examiner indicated that the Veteran's level of occupational and social functioning could be best summarized 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. The Veteran reported experiencing sleep problems in all phases, to include sleep disturbances, waking up early with an inability to fall back to sleep, and occasional nightmares with sweats. He stated that he gets about four hours of fragmented sleep per night. He endorsed mild hypervigilance, mood swings, and indicated that this psychiatric disability was exacerbated by chronic back pain. He also endorsed experiencing intrusive thoughts about his negative and traumatic military experiences in Vietnam. He indicated that he feels anxious and experiences a low mood at times. The examiner noted symptoms of anxiety and chronic sleep impairment. The Veteran reported that he gets nervous and "paranoid" while driving. He gets anxious that there might be something around the corner waiting on him, such as a car accident up ahead. He stated that he becomes "jittery" when he thinks about the war and his wife. He also feels paranoid about his inability to swim. Pursuant to the May 2020 Board remand, the Veteran appeared for a VA PTSD examination in October 2021. The examiner concluded that the Veteran only had one diagnosed mental health disability. The examiner indicated that the Veteran's level of occupational and social functioning could be best summarized as 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. The Veteran reported experiencing anxiety-related symptoms, including excessive apprehension and worry, variable concentration, attention problems, and short-term memory deficits. He also reported sleep disturbance consisting of difficulty falling and staying asleep, nightmares, flashbacks, re-experiencing events, intrusive memories, hypervigilance, and avoidance behaviors. The examiner noted symptoms of anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; and difficulty adapting to stressful circumstances, including work or a work like setting. Upon examination, the Veteran's demeanor, responsiveness to questions, manner of relating, and overall presentation was adequate. His general appearance was the same as his age. His mode of dress was appropriate, and he was well-groomed. His posture was rigid, and his motor behavior was normal. He used a cane when walking. The Veteran's eye contact was appropriate. His speech intelligibility was fluent, and the quality of his voice was clear. His receptive and expressive language skills were adequate. His thought processes were coherent and goal-directed with no evidence of hallucinations, delusions, or paranoia in the evaluation setting. His affect was somewhat restricted but not flattened. His mood was neutral and sensorium clear. His insight and judgment were good. The medical evidence also includes VA treatment records showing psychiatric treatment and symptoms that were not worse than or inconsistent with those recorded in the examination reports. Upon review of the medical and lay evidence of record, the Board finds that the evidence does not reflect symptoms that would meet the criteria for a rating in excess of 30 percent for any period of time during the pendency of the claim. There is no evidence of occupational and social impairment with reduced reliability and productivity. The Board notes that the presence or absence of certain symptoms is not necessarily determinative. These symptoms must also cause the occupational and social impairment in the referenced areas. See Vazquez-Claudio, supra. The Board's determination is not based solely on the listed symptoms. Rather, the treatment records and VA examination report were not indicative of occupational and social impairment that approximate the criteria for a 50 percent rating. While the evidence of record demonstrates impairment in occupational and social functioning, it does not show such impairment with reduced reliability and productivity to warrant an increased rating. In this case, the competent medical evidence offering detailed, specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the symptoms for the disability on appeal. The medical evidence also largely contemplates the Veteran's descriptions of his symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has contemplated the Veteran's statements concerning the severity of his symptoms when continuing the current 30 percent disability rating from the date of award of service connection. Indeed, the Veteran denied any hallucinations, delusion, sensory perceptual disturbances, and suicidal and homicidal ideations. He also denied thought disorder, panic attack, and depressive-related symptoms, as well as manic symptomatology. He did not indicate any significant problems with anger and irritability. Moreover, at the time of his October 2021 VA examination, the Veteran reported that his psychiatric symptoms largely stayed the same since his previous examination in August 2015. The Veteran also reported supportive familial relationships, as well as a supportive relationship with his church pastor. He also maintained a romantic relationship. The Veteran further expressed that he spent his free time with his daughter, as well as going to casinos, working on his car, and performing work around the house. He indicated that he did different things and did not sit around the house. Thus, the social and occupational impairment reported by the Veteran and noted in the VA examination reports is covered by his current 30 percent evaluation. The psychiatric symptoms described by the Veteran did not cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Without evidence of more serious occupational and social impairment, a higher rating is not warranted. Overall, the Veteran has not demonstrated symptoms consistent with or approximating the general level of impairment warranting a 50 percent evaluation or akin to the symptoms as found in the rating criteria. Mauerhan, supra. Additionally, there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the currently assigned 30 percent disability rating throughout the appeal period. Assignment of staged ratings is not warranted. See Fenderson, supra. Accordingly, the Board finds that the claim of entitlement to a disability rating in excess of 30 percent for other specified trauma and stressor related disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Although the Board is appreciative of the Veteran's faithful and honorable service to our country; however, given the record before it, this claim must be denied. 2. Entitlement to service connection for hypertension Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For purposes of establishing service connection for a disability resulting from exposure to certain herbicide agents, to include Agent Orange, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). Here, service in the Republic of Vietnam has been established. Service connection for certain chronic diseases may be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran contends that he is entitled to service connection for hypertension that is related to service, to include exposure to herbicide agents during service in Vietnam; or in the alternative, secondary to his service-connected disabilities. The Veteran appeared for a VA hypertension examination in August 2016, at which time the examiner diagnosed hypertension. Thus, the current-disability criterion for service connection is met. See Shedden, supra. However, the Board notes that hypertension is not among the disabilities recognized by VA as associated with herbicide exposure. 38 C.F.R. § 3.309(e). Therefore, entitlement to service connection for hypertension on a presumptive basis, as due to in-service exposure to herbicide agents, is not warranted. Although hypertension is not a disease subject to presumptive service connection based on herbicide exposure, a Veteran is not precluded from establishing service connection for a disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection and address the Veteran's contentions regarding secondary service connection as well. Pursuant to the May 2020 Board remand, the Veteran appeared for a VA hypertension examination in June 2020. The VA examiner opined that it was less likely than not that the Veteran's hypertension was incurred in service, to include exposure to herbicide agents. In support of the opinion, the VA examiner stated that the Veteran separated from service in 1967, which indicates many years of gaps in care. Without objective evidence, the examiner determined that it was not possible to confirm the cause of the Veteran's hypertension; thus, a nexus could not be established. An addendum opinion was obtained in September 2020. The examiner stated that the Veteran did not have a diagnosis of hypertension during service, to include as due to exposure to herbicide agents. The examiner noted that the Veteran's September 1965 enlistment physical did not show a diagnosis of hypertension, as his blood pressure reading was 120/80. The Veteran's service treatment records do not show the diagnosis of, or treatment for, hypertension. Moreover, his November 1967 separation examination does not show a diagnosis of hypertension, as his blood pressure reading was 118/74. With regard to the August 2016 VA examiner's notation of a 1965 diagnosis of hypertension, the examiner explained that the Veteran would have been approximately 20 years at the time of diagnosis; thus, it would be rare to suffer from high blood pressure considering he had no other known medical conditions. Moreover, the diagnosis of hypertension is not supported by his enlistment and separation examinations. The examiner further noted that the first evidence of hypertension is found in an April 1980 treatment report, approximately 13 years after the Veteran's separation from service. Thus, the medical evidence fails to show a diagnosis of hypertension within the time period specified under 38 C.F.R. § 3.307 to warrant service connection on a presumptive basis. Lastly, with regard to the November 2018 Veterans and Agent Orange: Update 11, which cites a National Academy of Sciences (NAS) report indicating that there is sufficient evidence of an association between hypertension and herbicide exposure, the examiner explained that an association can be made between the high blood pressure and exposure to herbicide agents; however, the Veteran's diagnosis of hypertension occurred outside of any presumptive period. In addition, the examiner noted that the Veteran is a former smoker who also suffers from obesity, alcohol abuse, diabetes mellitus, diabetic renal disease, and other co-morbidities that are contributory and most likely the primary cause of his hypertension. In light of the negative nexus opinions and lack of positive opinion to contradict the negative evidence, the Board concludes that the Veteran's hypertension is not related to his military service. In reaching this conclusion, the Board finds the September 2020 VA opinion to have great evidentiary weight, as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record. The VA examiner considered the Veteran's medical history, reviewed the claims file, and provided an opinion that appears consistent with the medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consideration has also been given to the Veteran's contentions that his hypertension is related to his active service, to include as due to herbicide exposure. Although laypersons are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, entitlement to service connection for hypertension on a direct basis is not warranted. As the Board has found that service connection is not warranted on either direct or presumptive theories of entitlement, the Board will now address whether service connection is warranted on a secondary basis of entitlement. As indicated above, the August 2016 VA examiner diagnosed hypertension. Additionally, the Veteran is service connected for diabetes mellitus, type II. Accordingly, the first and second elements of Wallin have been met. However, as for the third element of entitlement to secondary service connection, a nexus between the service-connected diabetes mellitus and the Veteran's hypertension, the Board finds that the burden has not been met. The Veteran appeared for a VA hypertension examination in June 2020. The examiner opined that it was less likely than not that the Veteran's hypertension was proximately due to, the result of, or aggravated by his service-connected diabetes mellitus, type II. In support of the opinion, the VA examiner explained that the Veteran separated from service in 1967, which indicates many years of gaps in care. Without objective evidence, the examiner determined that it was not possible to confirm the cause of the Veteran's hypertension; thus, a nexus could not be established. An addendum opinion was obtained in September 2020. The examiner opined that it was less likely than not that the Veteran's hypertension was caused or aggravated by his service-connected disabilities, as his hypertension preceded his diabetes mellitus diagnosis. Moreover, the examiner explained that the Veteran has significant risk factors and lifestyle choices which are more likely than not known contributory factors which increase hypertension without treatment. In light of the negative nexus opinions and lack of positive opinion to contradict the negative evidence, the Board finds that the weight of the evidence is also against a finding that the Veteran's hypertension was caused or aggravated by service-connected diabetes mellitus, type II. 38 C.F.R. § 3.310. Therefore, the third element under Wallin for secondary service connection is not met. Accordingly, the Board concludes that the preponderance of the evidence is against the claim under any theory of entitlement, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.