Citation Nr: 21069856 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-57 497 DATE: November 22, 2021 ORDER A rating in excess of 30 percent for an acquired psychiatric disorder from September 12, 2012 to January 17, 2013 and from April 1, 2013 is denied. REMANDED Entitlement to service connection for a heart condition, as due to herbicide agent exposure and/or as secondary to service-connected disability, is remanded. Entitlement to a total disability rating by reason of individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the entire period on appeal, the Veteran's acquired psychiatric disorder has been 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 normal routine behavior, self-care and conversation CONCLUSION OF LAW The criteria for a disability rating in excess of 30, from September 12, 2012 to January 17, 2013 and from April 1, 2013, for percent for an acquired psychiatric 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 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from July 1966 to November 1967. These matters were previously remanded for additional development by the Board of Veterans' Appeals (Board) in July 2019. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran's acquired psychiatric disorder, like all psychiatric disorders, is rated under the General Rating Formula for mental disorders. Under the General Rating Formula, a 30 percent rating is assigned for a mental disorder that results in 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 rating of 50 percent is warranted for a mental disorder that results in occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A rating of 70 percent is warranted for a mental disorder that results in 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 inability to establish and maintain effective relationships. A 100 percent rating is assigned when the condition results in 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. 38 C.F.R. § 4.130, DC 9411. Importantly, evaluations under § 4.130 are symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to increased ratings for an acquired psychiatric disorder. The Veteran is currently assigned a 30 percent disability rating for his acquired psychiatric disorder from September 12, 2012 to January 17, 2013 and from April 1, 2013. The Veteran, however, asserts that higher ratings are warranted. After a thorough review of the record, the Board finds that a rating in excess of 30 percent is not warranted at any point during the period on appeal. In December 2012, the Veteran underwent an initial posttraumatic stress disorder (PTSD) examination. On examination, the examiner diagnosed the Veteran with anxiety disorder, not otherwise specified (NOS), amphetamine dependence, early partial remission, and alcohol dependence. During the examination, the Veteran reported that he had one son and one daughter, who he maintained regular contact with and had positive interactions. He also lived with his aunt and had a few limited social activities to include playing cards. The examiner indicated that the Veteran exhibited symptoms consisting of: memory loss for names of close relatives, own occupation, or own name; 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 worklike setting; and inability to establish and maintain effective relationship. The examiner held that the Veteran began using drugs and alcohol to cope with his anxiety levels, and that this use had increased over the years causing major interference with his social and occupational life. Lastly, the examiner indicated that the Veteran was capable of managing his financial affairs. Ultimately, the examiner held that, based on the symptomatology noted above, the Veteran's level of occupational and social impairment was best described 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 normal routine behaviour, self-care and conversation. See December 2012 VA Examination. In September 2016, the Veteran underwent another VA examination to assess the severity of his acquired psychiatric disorder. The examiner diagnosed the Veteran with stimulant use disorder, moderate, alcohol use disorder, moderate, and other specified anxiety disorder. During the examination, the Veteran reported that he had been married twice, but had not been in any long-term relationships since 1988. Additionally, the Veteran indicated that he had two adult children, whom he maintained regular contact with. In terms of hobbies/ interests, the Veteran reported that he enjoyed playing fantasy football and baseball. The examiner noted the Veteran continued to experience significant difficulty with alcohol and illicit drug abuse. Due to the Veteran's anxiety disorder, the examiner noted that he exhibited symptoms including anxiety, restlessness, poor concentration, poor sleep irritability, and difficulty controlling/managing his symptoms of anxiety. Based on the symptomatology noted above, the examiner determined the Veteran's level of occupational and social impairment was best described 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 normal routine behaviour, self-care and conversation. See September 2016 VA Examination. A May 2018 VA treatment record reveals that the Veteran endorsed some passive suicidal ideation. Specifically, the Veteran indicated that, "sometimes when the pain is really bad, I think it would be easier to not have to deal with it." Despite this, the Veteran reported he had no plan or intent. Additionally, the Veteran endorsed some anger and mild homicidal ideation. In this regard, the Veteran reported that his anger was aimed at, "the people processing my disability claim." Another VA treatment record from August 2018 indicates that the Veteran expressed suicidal ideation without intent. See VA Treatment Record received March 2021. Most recently, in February 2020, the Veteran underwent a VA examination to assess the severity of his acquired psychiatric disorder. Initially, the examiner noted that, based on evaluation and review of the Veteran's medical records, the Veteran met the criteria for a diagnosis of PTSD based on his service in Vietnam, which included incinerating amputated body parts. The examiner indicated that this replaced the Veteran's previous diagnosis of anxiety disorder, and noted that his anxiety symptoms were subsumed under the PTSD diagnosis. The examiner held that while the Veteran did not have a broad social network, he participated in activities in the community by regularly playing in a pool league with his son. Further, the examiner noted that, in addition to mental health symptoms, the Veteran's age and general overall health contributed to changes in his activity level. During the examination, the Veteran reported experiencing nightmares of Vietnam. Additionally, he indicated that seeing amputees triggered his thoughts and other symptoms. Due to his psychiatric disorder, the examiner indicated that the Veteran suffered symptoms consisting of: depressed mood; anxiety; and chronic sleep impairment. The examiner also found that the Veteran was capable of managing his financial affairs. Based on the symptoms noted above, the examiner determined that the Veteran's level of occupational and social impairment was best characterized 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 normal routine behaviour, self-care, and conversation. See February 2020 VA Examination. VA treatment records from the appeal period show continued treatment for substance abuse, anxiety, and depression. Additionally, the treatment records indicate that the Veteran suffered additional symptoms such as mild memory loss, nightmares, and isolation. See VA Treatment Record received January 2020. After reviewing the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's acquired psychiatric disorder meets the criteria for a rating in excess of 30 percent at any point during the appeal period. Throughout the appeal period, VA examiners have consistently found that the Veteran's level of occupational and social impairment is best described 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 normal conversation. Under the General Rating Formula for Mental Disorders, this correlates to a 30 percent rating. Additionally, the Veteran did not demonstrate symptoms of flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of long term memory; impaired abstract thinking; or other symptoms approximating the criteria for a higher 50 percent schedular rating. Moreover, the evidence does not show that the Veteran suffered from symptoms of similar frequency, severity, and duration that cause occupational and social impairment equivalent to a 50 percent disability rating, or higher. Mauerhan, 16 Vet. App. at 443. In reaching this decision, the Board acknowledges that in May and August 2018, the Veteran endorsed passive suicidal thoughts; however, this appeared to be a temporary or fleeing symptom. In pertinent part, VA treatment records dated before, between, after May and August 2018 indicated consistently that the Veteran denied suicidal thoughts or ideation. The Veteran's other remaining symptoms are either contemplated by or more consistent with a 30 percent rating. Notably, throughout the appeal period, the Veteran was shown to have relationships with his children, play fantasy sports, and play in a pool league with his son. Accordingly, the Board finds that a rating in excess of 30 percent for the Veteran's service-connected acquired psychiatric disorder must be denied. REASONS FOR REMAND Entitlement to service connection for a heart condition, as due to herbicide agent exposure and/or as secondary to service-connected disability, is remanded. The Veteran seeks service connection for a heart condition, to include as secondary to his service connected diabetes mellitus, or, alternatively, as due to herbicide agent exposure. The Veteran's DD 214 shows that he had service in the Republic of Vietnam during the Vietnam era; therefore, he is presumed to have been exposed to herbicide agents therein. 38 C.F.R. § 3.307(a)(6)(iii). See DD 214. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). The list of diseases afforded this presumption includes ischemic heart disease, which includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. Ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. The Veteran's postservice treatment records show that he has been diagnosed variously with a heart condition; therefore, one of the critical questions to be resolved in this case is whether the Veteran has a diagnosis of ischemic heart disease, including coronary artery disease (CAD). The Veteran was provided a VA examination in December 2012. At that time, it was opined the Veteran did not have ischemic heart disease, but rather, suffered from congestive heart failure, bradycardia, and hypertrophic cardiomyopathy. It was further opined that the hypertrophic cardiomyopathy most likely had a genetic etiology and was less likely than not related to the Veteran's military service, including his exposure to herbicide agents therein. In January 2019, the Veteran underwent another VA examination which resulted in a diagnosis of coronary artery disease (date of diagnosis, October 2012); cardiomyopathy (date of diagnosis, October 2012); implanted automatic implantable cardioverter defibrillator (date of diagnosis, January 2012); and symptomatic sinus bradycardia (date of diagnosis, 2012). Despite the diagnosis of coronary artery disease, the examiner indicated that none of the Veteran's heart conditions qualified within the generally accepted medical definition of ischemic heart disease. More recently, a VA medical opinion was obtained in April 2021. The examiner found no evidence of ischemic heart disease in the Veteran's VA records and opined that the Veteran's hypertrophic cardiomyopathy, bradycardia, and congestive heart failure had nothing to do with herbicide agents exposure. The examiner noted that the Veteran's service treatment records showed no complaints, medical care, or disability related to cardiopulmonary conditions and found that the Veteran's current cardiac disability was caused by hypertrophic cardiomyopathy, which was a genetically determined heart muscle disease most often caused by mutations in one of several sarcomere genes which encode components of the contractile apparatus of the heart. The examiner again noted that this condition had not been shown to be related to herbicide agents exposure. The examiner did not, however, address the prior diagnosis of coronary artery disease found in the record, to include discussion of whether this was a valid diagnosis. The Board has reviewed the Veteran's VA treatment records. They show that in October 2012, the Veteran underwent a coronary angiography where he was noted to have "1 vessel CAD." Subsequent treatment records have also noted the Veteran as having a history of coronary artery disease; for example, in a January 2013 cardiology staff consult note, it was stated the Veteran was known to have "mild-to-moderate triple vessel CAD," and in an April 2017 ambulatory care note, it was indicated the Veteran had a history of hypertrophic cardiomyopathy, bradycardia, and severe coronary artery disease. However, following a May 2019 cardiology consult where the Veteran presented for cardiac clearance for cataract surgery, it was noted in the June 2019 pre-op assessment that the Veteran had "questionable non-obs[tructive] CAD." See VA Treatment Record received January 2020. Given the questions that have been raised by the record as to whether the Veteran has a valid diagnosis of coronary artery disease, the Board finds that remand is necessary for reconciliation of the record and clarification as to the nature of the Veteran's current heart disorders. Entitlement to a TDIU is remanded. Regarding the claim for TDIU, the U.S. Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the Veteran's December 2012 VA examination, the examiner held that the Veteran started using drugs and alcohol to cope with his anxiety levels. Moreover, during the September 2016 VA examination, the Veteran indicated he had had over 100 jobs over his life, which he had been either fired or laid off from due to his drinking problem. This indicates that the Veteran may be unable to maintain substantially gainful employment due to his service-connected PTSD. Accordingly, this evidence reasonably raises the issue of entitlement to a TDIU. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran has a diagnosis of coronary artery disease (CAD) that conforms with the definition of ischemic heart disease (IHD) per VA regulation. The examiner must review the claims file and provide a rationale for all opinions expressed. If the examiner finds that an in-person examination is needed to provide an informed opinion, then schedule an examination. In addressing whether the Veteran has coronary artery disease, the examiner should specifically review those VA treatment records noting a diagnosis or medical history of coronary artery disease, the January 2019 VA examination report noting a diagnosis of coronary artery disease, as well as the December 2012, January 2019, and April 2021 VA examination reports/medical opinions indicating that the Veteran does not have a heart condition that qualifies within the generally accepted medical definition of ischemic heart disease. The examiner is asked to reconcile and discuss these contradictory findings. 2. Provide the Veteran with appropriate notice regarding the TDIU claim. Request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and submit any additional evidence in support of a TDIU claim, to specifically include information on his work history, salary, and educational history. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.