Citation Nr: 21070062 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 20-28 585 DATE: November 22, 2021 ORDER New and material evidence has been submitted to re-open a claim for entitlement to service connection for a heart condition, to include bicuspid aortic valve stenosis status post aortic valve replacement, and the petition to reopen the claim granted. Entitlement to an initial disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a heart condition, to include bicuspid aortic valve stenosis status post aortic valve replacement, as due to herbicide agent exposure is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. The July 2014 rating decision that denied the Veteran's claim for ischemic heart disease was not appealed, nor was new and material evidence received during the appeal period; however, evidence received since the final July 2014 rating decision is new and raises a reasonable possibility of substantiating the claim. 2. The severity, frequency, and duration of the Veteran's PTSD symptoms more nearly approximates occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. CONCLUSIONS OF LAW 1. The July 2014 rating decision that denied the Veteran's claim for entitlement to service connection for ischemic heart disease is final; however, new and material evidence has been received and, as such, the claim for service connection for a heart condition is reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria for a disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Heart Condition A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. The threshold to reopen a claim is low and does not require new and material evidence regarding each element of the claim that was not proved in the prior decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran filed an original claim for service connection for ischemic heart disease in December 2013 that was denied in a July 2014 rating decision. The Veteran did not appeal or submit additional evidence within the appeal period and, accordingly, the July 2014 decision became final. In August 2017, the Veteran filed a petition to reopen the claim for ischemic heart disease. New evidence submitted since the final July 2014 decision includes an April 2020 statement asserting that his heart condition is related to service-connected PTSD and citing to medical literature that indicates veterans with PTSD have an increased risk of heart attack and death from cardiovascular disease. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As this evidence is new and material, is neither cumulative nor redundant of the evidence previously of record, is presumed credible, and raises a reasonable possibility of substantiating the claim, the claim for service connection for a heart condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Increased Rating PTSD The Veteran seeks an increased rating in excess of 50 percent for service-connected PTSD. Under the General Formula for Mental Disorders (General Formula), 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, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. 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. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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). 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. 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. A 100 percent rating 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; or memory loss for names of close relatives, own occupation or own name. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating in excess of 50 percent. The Board concludes that the Veteran's symptoms more closely approximate the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. VA and private treatment records, the May 2018 and August 2019 VA examination, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating (suicidal ideation, impaired impulse control such as unprovoked irritability with periods of violence, difficulty in adapting to stressful circumstances including work or a worklike setting), symptoms associated with a 50 percent rating (panic attacks more than once a week, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships), and symptoms associated with a 30 percent rating (depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss such as forgetting names, directions, recent events). He also had symptoms that are not listed with a specific rating, such as easy startling. The unlisted symptom of easy startling is similar to anxiety and suspiciousness, which are contemplated by the assigned 70 percent rating. After resolving doubt in the Veteran's favor, the Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating: occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA treatment records and the May 2018 and August 2019 VA examinations indicate that the Veteran had occupational and social impairment with reduced reliability and productivity. During the May 2018 VA examination, the Veteran reported a history of being sad, down, short-fused, withdrawn, strong emotional reactions such as sobbing in response to military TV programing and news events, emotional reactivity to loud noises described as "going ballistic," difficulty with concentration, and frequent panic episodes after nightmares. During the August 2019 VA examination, he reported suicidal thoughts, to include wondering what it would be like to walk into a plane propeller. Though examiners determined that the Veteran had occupational and social impairment with reduced reliability and productivity, the Board will resolve doubt in the Veteran's favor based on the severity, frequency, and duration of his reported symptoms as described above. The Board finds that the Veteran's symptoms and level of impairment due to such symptoms does not more nearly approximate a 100 percent rating, which requires total occupational and social impairment. Mental status examinations in VA treatment records and the May 2018 and August 2019 VA examinations indicate that the Veteran retained at least some social functioning. He reported being close to his family, that his marital relationship was very good, and having a close circle of friends. Additionally, mental status examinations in VA treatment records and the May 2018 and August 2019 VA examinations do not establish total occupational impairment. Moreover, treatment records, VA examinations, and lay statements do not reveal or show any of the symptoms listed under the 100 percent rating criteria, 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; memory loss for names of close relatives, own occupation, or own name. To the extent that he reported some difficulty with concentration and memory loss, he was noted to have congruent affect, present with appropriate attire and no notable deficits in grooming or hygiene, present with linear, relevant, and logical thought patterns and expressions, and present with attentive and cooperative behavior during examinations. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the August 2019 VA examination. In sum, the Veteran's PTSD more closely approximates the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. Accordingly, an increased rating for PTSD of 70 percent, but no higher, is granted. REASONS FOR REMAND Having reviewed the record, the Board finds remand is warranted for the issues of service connection for a heart condition and entitlement to a TDIU. With respect to the heart claim, the Board finds remand is warranted for an examination. In April 2020, the Veteran cited to medical literature indicating that veterans with PTSD have an increased risk of heart attack and death from cardiovascular disease. As service connection is in effect for PTSD, remand is warranted for an opinion on whether any current heart condition is related to PTSD. The May 2018 VA examinations determined that the Veteran's bicuspid aortic valve stenosis status post aortic valve replacement is less likely as not related to active service, to include herbicide agent exposure. However, in finding that there is no medical nexus for agent orange exposure to cause aortic valve stenosis or the need for an aortic valve replacement, the examiner did not provide a supporting opinion. Accordingly, remand is warranted for an opinion that includes a rationale. As the above claim is being remanded, the outcome of which could affect whether the Veteran meets the criteria for TDIU benefits, the Board finds that the claim for TDIU is inextricably intertwined and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Finally, any outstanding VA treatment records from March 2020 to present should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from March 2020 to present. 2. Schedule the Veteran for a VA examination for his heart condition, to include bicuspid aortic valve stenosis status post aortic valve replacement. The examiner must review the claims file. The examiner is asked to provide a response to the following: a) Is the disability at least as likely as not related to service, including in-service exposure to herbicide agents? b) Is the disability at least as likely as not proximately due to service-connected PTSD? c) Is the disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected PTSD? Attention is invited to the medical literature cited by the Veteran in an April 2020 statement indicating that veterans with PTSD have an increased risk of heart attack and death from cardiovascular disease. Any opinions offered should be accompanied by the underlying reasons for the conclusions. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Vang, 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.