Citation Nr: 21071516
Decision Date: 11/30/21	Archive Date: 11/30/21

DOCKET NO. 17-10 077
DATE: November 30, 2021

ORDER

1. Entitlement to a 30 percent, but no higher, rating from [the earlier effective date of] March 26, 2015 to April 23, 2021, and a 60 percent, but no higher, rating from April 23, 2021, for the Veteran's coronary artery disease (CAD), is granted; entitlement to ratings in excess of 10 percent prior to March 26, 2015, 30 percent from March 26, 2015, and 60 percent rating from April 23, 2021 is denied.

2. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied.

3. Entitlement to service connection for a neck disability is denied.

4. Entitlement to service connection for a back disability is denied.

5. Entitlement to service connection for a pulmonary disability, to include chronic obstructive pulmonary disease (COPD), is denied.

FINDINGS OF FACT

1. Prior to March 26, 2015, the Veteran's CAD was not shown to have been manifested by workload limited to seven METs or less, or by evidence of cardiac hypertrophy or dilatation on electrocardiogram (EKG), echocardiogram (ECG), or X-ray.

2. From March 26, 2015 to April 23, 2021, there is evidence of cardiac dilatation on EKG; the CAD is not shown to have been manifested by workload limited to five METs or less, or left ventricular dysfunction with an ejection fraction 50 percent or less.

3. From April 23, 2021, the Veteran's CAD is shown to have been manifested by a workload limited to 5 METs (but not 3 METS or less); chronic congestive heart failure, workload of only 3 METS or less due to CAD, or left ventricular dysfunction with an ejection fraction of less than 30 percent is not shown.

4. At no time is the Veteran's service-connected PTSD shown to have been productive of total occupational and total social impairment.

5. A neck disability was not manifested during the Veteran's service; degenerative disc disease of the cervical spine was first diagnosed many years after service; and his current neck disability is not shown to be etiologically related to his service.

6. A low back disability was not manifested during the Veteran's service; degenerative disc disease of the lumbar spine was first diagnosed many years after service; and his current low back disability is not shown to be etiologically related to his service.

7. The Veteran's COPD was not manifested in service or for many years thereafter, and there is no competent evidence that it may be etiologically related to his service, to include as due to exposure to herbicide agents therein.

CONCLUSIONS OF LAW

1. A rating for CAD in excess of 10 percent prior to March 26, 2015 is not warranted; a 30 percent rating for CAD is warranted from [the earlier effective date of] March 26, 2015; and a 60 percent rating for CAD is warranted from April 23, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Code 7005.

2. A rating in excess of 70 percent for PTSD is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, Code 9411.

3. Service connection for a neck disability is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309.

4. Service connection for a low back disability is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309.

5. Service connection for COPD is not warranted. 38 U.S.C. §§ 1103, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.300, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant is a Veteran who served on active duty from January 1966 to November 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal of September 2015 and October 2015 Department of Veterans Affairs (VA) rating decisions. In February 2020, a videoconference hearing was held before the undersigned; a transcript is in the record. In November 2020, these matters and the matters of service connection for aortic abdominal aneurysm and seeking a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) were remanded for additional development. A May 2021 rating decision increased the rating for PTSD to 70 percent, effective December 17, 2014; awarded service connection for abdominal aortic aneurysm, fully resolving that issue; granted a TDIU rating, effective December 17, 2014, resolving that issue; and granted special monthly compensation (SMC) at the housebound rate from February 2, 2015 to December 31, 2015. An August 2021 rating decision increased the rating for CAD to 30 percent, effective March 26, 2016. As the May 2021 and August 2021 rating decisions awarded less than the maximum benefit for PTSD and CAD, those matters remain on appeal. See AB v. Brown, 6 Vet. App, 35, 38 (1993).

At the outset, the Board finds there has been substantial compliance with its November 2020 remand directives pertaining to these matters. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). A December 2020 letter asked the Veteran to complete an authorization form allowing VA to obtain treatment records on his behalf and informed him that he may submit the records on his own. In January 2021, he provided a completed authorization form allowing VA to obtain treatment records from A&W Psychiatric Services, Northern NJ Pulmonary Associates, University Radiology, and Southern Ocean Medical Center, which were sought and received later that month. The VA examinations and medical opinions requested were completed/obtained in April 2021.

Increased Rating

Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. 

Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where the appeal is from the initial rating decision assigned with an award of service connection, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999).

Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

1. Entitlement to increases in the ratings for CAD.

CAD is rated under 38 C.F.R. § 4.104, Code 7005 (for arteriosclerotic heart disease). During the pendency of the appeal the rating criteria for evaluating cardiovascular disabilities under 38 C.F.R. § 4.104 were amended effective November 14, 2021. 86 Fed. Reg. 187 (November 14, 2021). As the period here is from December 17, 2014 (the date service connection for CAD was awarded) to the present, the Veteran is entitled to a rating under either the prior or the revised (from their effective dates, if more favorable) criteria. See VAGCPREC 3-2000.

Under the pre-November 14, 2021 Code 7005, a 10 percent rating is warranted when workload greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, with continuous medication required. A 30 percent rating is warranted when workload is greater than 5 METs but not greater than 7 METs; or, with evidence of cardiac hypertrophy or dilatation on EKG, ECG, or X-ray. A 60 percent rating is warranted where there is more than one episode of acute congestive heart failure in the past year; or, workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, with left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating requires chronic congestive heart failure; or, a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of less than 30 percent. [Note (2) defines one MET as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used.] 38 C.F.R. § 4.104.

Two of the applicable rating criteria needed for evaluation purposes are the Veteran's METs (metabolic equivalent) level and the percentage of his left ventricular ejection fraction. If the left ventricular ejection fraction is not of record, he is to be evaluated based on the alternative criteria unless the examiner states that the left ventricular ejection fraction test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the Veteran's cardiovascular disability. 38 C.F.R. § 4.100 (c).

Under the post-November 14, 2021 Code 7005, CAD is evaluated under the General Rating Formula for Diseases of the Heart (General Formula). Under the General Formula, a 10 percent rating is warranted for a workload of 7.1 to 10.0 METs results in heart failure symptoms; or continuous medication required for control. A 30 percent rating is warranted where a workload of 5.1 to 7.0 METs  results in heart failure symptoms; or evidence of cardiac hypertrophy or dilatation confirmed by echocardiogram or equivalent (e.g., multigated acquisition scan or MRI). A 60 percent rating is warranted where a workload of 3.1 to 5.0 METs results in heart failure symptoms. One MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which breathlessness, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, a medical examiner may estimate the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in those symptoms. See Note 2 following the criteria for rating on such basis. Heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. See Note 3 following the General Formula rating criteria. 38 C.F.R. § 4.104. 

On December 2014 private disability benefits questionnaire (DBQ) (received February 2, 2015), CAD status post coronary artery bypass graft (CABG) was diagnosed. It was noted that continuous medication was required, and that there was no evidence of cardiac hypertrophy or dilatation. The provider stated that the Veteran denied having symptoms of dyspnea, fatigue, angina, dizziness, or syncope with any level of activity. Left ventricular ejection fraction was 60 percent.

A March 26, 2015 private stress test (received September 16, 2015) found normal wall motion, thickening with left ventricular ejection fraction was 73 percent and there was no evidence of transient ischemic dilation. A large, mild-to-moderate density defect of the inferolateral, basal, and mid inferior, and basal and mid inferoseptal walls was noted.

On September 9, 2015 VA heart examination, the Veteran reported fatigue with prolonged exertional activities, but that he still went to a gym to exercise on a regular basis. He denied chest pain. It was noted that continuous medication was required; that he did not have congestive heart failure; and that he underwent CABG in 2013. There was no evidence of cardiac hypertrophy or dilatation. Left ventricular ejection fraction was 60 percent. The Veteran's interview-based METs level was greater than 7 METs but not greater than 10 METs with symptoms of fatigue. The examiner opined that the Veteran's heart condition did not impact his ability to work.

On October 2015 private DBQ, it was noted that continuous medication was required, and that the Veteran did have congestive heart failure. The provider noted the Veteran did not have more than one episode of congestive heart failure in the past year. Diagnostic testing was not conducted due to the Veteran being unable to use a treadmill due to arthritis, back pain, and an abdominal aortic aneurysm. Left ventricular ejection fraction was 70 percent. The provider stated that the Veteran's interview-based METs level was greater than 1 METs but not greater than 3 METs with symptoms of fatigue and dyspnea. He indicated there was no evidence of cardiac hypertrophy or dilatation. The provider stated the Veteran also has paroxysmal atrial fibrillation and COPD which affect functional ability.

On February 2018 VA PTSD examination, the Veteran reported he can no longer play golf due to his physical health difficulties but continues to regularly go to the gym, utilizing a carefully monitored low impact exercise routine from his doctor. 

At the February 2020 hearing, the Veteran testified that his CAD has worsened in severity since he was last examined, and that he sees a private cardiologist every 6 months.

In a February 2021 statement by the Veteran's private cardiovascular treatment- provider (Cardiovascular Consultants of North Jersey), it was noted that his medical conditions include CAD status post CABG, hypertension, diastolic congestive failure, hyperlipidemia, paroxysmal atrial fibrillation, abdominal aortic aneurysm, COPD with chronic respiratory failure on home oxygen, and benign prostatic hypertrophy. The provider noted, at this time, he is oxygen-dependent, with a functional capacity of less than 3 METs and New York Association class IV symptoms of dyspnea. 

On April 23, 2021 VA heart examination, the Veteran reported he noticed having palpitations and describes constant shortness of breath as a result of pulmonary fibrosis and overlapping heart symptoms. He reported he continues to have dyspnea and fatigue with activities. It was noted that he was in a wheelchair for any activities as walking is restricted due to shortness of breath from respiratory failure related to his lung condition. CAD, congestive heart failure, CABG, and paroxysmal atrial fibrillation were diagnosed. The examiner opined that the new diagnosis of paroxysmal atrial fibrillation is a progression of the service-connected CAD, which causes stress to the heart which would increase the likelihood of developing atrial fibrillation and congestive heart failure. It was noted that continuous medication is required for control of the Veteran's heart condition and that he did have congestive heart failure, but had no such episodes in the past year. The examiner found evidence of a cardiac arrhythmia (noted as intermittent, 1 to 4 episodes in the past 12 months indicated on EKG), and cardiac hypertrophy (noted as indicated on "March 26, 2016" ECG). Left ventricular ejection fraction of 73 percent. The Veteran's interview-based METs level was greater than 1 METs but not greater than 3 METs with symptoms of dyspnea; however, the examiner indicated the METs level limitation was not solely due to the heart condition. The examiner opined that METs solely due to the cardiac condition is more accurately reflected as greater than 3 METs but not greater than 5 METs, reconciling the overlapping dyspnea and oxygen use for his pulmonary fibrosis. The examiner stated the current oxygen use for the lung condition impeded any physical activities as documented by the statement by his February 2021 private provider, however left ventricular ejection fraction of 73 percent (found on the 2015 Lexiscan stress test) would not be likely with the self-reported 1 to 3 METs (noted at that time). The examiner opined his left ventricular ejection fraction (on 2015 stress scans) is the most objective reflection of the Veteran's current cardiac status. The examiner explained that his CAD has overlapping symptoms of dyspnea that impacts any type of physical activities such as lifting or holding objects; oxygen use related to the lung condition makes the Veteran unable to perform sedentary work; and, the congestive heart failure and atrial fibrillation do not impact work.

At the outset, it is noteworthy that deciding this matter has been complicated by the Veteran's failure to cooperate with the VA's attempts to secure private cardiology treatment records. The November 2020 Board remand noted that based on the Veteran's accounts, it appeared that private cardiology treatment records are outstanding, and requested development for records of such treatment (which required his authorization). A December 2020 VA letter to the Veteran requested him to submit authorizations for VA to obtain records. In January 2021, he provided a VA Form 21- 4142 for A&W Psychiatric Services, Northern NJ Pulmonary Associates, University Radiology, and Southern Ocean Medical Center. VA obtained records from these four providers, but the authorizations received and records obtained do not include private cardiology records (to include specifically from Cardiovascular Consultants of North Jersey). It is assumed that either no such records exist or that any existing records do not support his claim. Regardless, VA cannot acquire those records without his authorization.  

The Board finds that the preponderance of the evidence is against a finding that a rating in excess of 10 percent for the Veteran's CAD was warranted prior to March 26, 2015. The December 2014 private provider and September 2015 VA examiner each noted that continuous medication was required, however, on December 2014 DBQ, the Veteran denied experiencing any symptoms related to his cardiac condition with any level of physical activity. The December 2014 private provider reviewed the results of prior testing and found no evidence of cardiac hypertrophy or dilatation. The Veteran's treatment records, VA examinations, and the report of a private DBQ do not show chronic congestive heart failure. Accordingly, a rating in excess of 10 percent for CAD was not warranted prior to March 26, 2015.

From March 26, 2015, the evidence shows that the manifestations of CAD were consistent with the criteria for a 30 percent rating under Code 7005. A report of a Lexiscan stress test on March 26, 2015 was interpreted by an April 2021 VA examiner as showing evidence of cardiac dilatation. While the 2021 VA examiner noted the diagnostic testing was completed on March 26, 2016 (and the August 2021 rating decision awarded an increase (to 30 percent) rating based on that date notation), a close review of the record shows that the diagnostic testing which was interpreted to show cardiac dilatation was completed on March 26, 2015. While a September 2015 VA examiner did not find evidence of cardiac dilatation, it is notable that the private Lexiscan stress test was received after the September 2015 VA examination was conducted. As there is evidence of worsening to an extent warranting a 30 percent rating under Code 7005 as of March 26, 2015, a 30 percent rating for CAD is warranted from that [earlier] effective date. 

The Board has considered whether a rating in excess of 30 percent is warranted from March 26, 2015 to April 23, 2021 and finds that it is not. The evidence consistently showed that the Veteran did not have congestive heart failure or an ejection fraction less than 50 percent. While the October 2015 private provider opined that his CAD is manifested by an estimated workload between 1 and 3 METs with dyspnea and fatigue, the private provider noted that paroxysmal atrial fibrillation and nonservice-connected COPD also affected his functional ability. Unlike the September 2015 VA examiner, the private provider did not provide an estimate of the METs level solely due to his service-connected CAD or reconcile the provider's interview-based METs estimate with the left ventricular ejection fraction of 73 percent (as noted by the April 2021, VA examiner). Therefore, it merits less probative value. On September 2015 VA heart examination (within a month prior to the October 2015 private DBQ), the Veteran reported going to the gym on a regular basis and experiencing fatigue with prolonged exertional activities. Based on the Veteran's reports, the VA examiner found his CAD to be manifested by an estimated workload capacity greater than 7, but no greater than 10, METs. Such workload level was defined as consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging. The 2015 VA examiner's interview-based METs estimate is consistent with that found on the December 2014 private DBQ, the finding of a 73 percent left ventricular ejection fraction, and the Veteran's self-reported gym activities and experiencing fatigue with prolonged exertion (which would be inconsistent with a cardiac METS level of 3 or less). The Board finds the September 2015 examiner's interview-based METs estimate to be more probative and persuasive. Accordingly, a rating in excess of 30 percent from March 26, 2015 to April 23, 2021 is not warranted.

From April 23, 2021, the evidence shows that the manifestations of CAD were consistent with the criteria for a 60 percent rating under both pre-and post- November 14, 2021 Code 7005 criteria. While the April 23, 2021 VA examination report reflected a workload greater than 1 MET but not greater than 3 METs with dyspnea and the February 2021 private provider noted that he has a functional capacity not greater than 3 METs, it is significant that these METS estimates were based not just on the service-connected CAD but also on symptoms of dyspnea from nonservice-connected respiratory disability. Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Here however, the April 2021 VA examiner was able to distinguish the effects of symptoms of the service-connected CAD from those due to a non-service-connected (including based on a denial of service connection herein) respiratory disability. Notably, the April 2021 VA examiner opined that an estimated workload due solely to the cardiac disability is more accurately reflected as 3 to 5 METs, observing that the February 2021 private provider estimated workload of 1 to 3 METs would not be likely with the 73 percent left ventricular ejection fraction found by the private provider in 2015. The Board finds the estimated workload solely due to his cardiac disability to be the most accurate reflection of his current cardiac status. While the 2021 VA examination noted congestive heart failure, there is no evidence of more than one episode of acute congestive heart failure in the past year. There is no evidence of chronic congestive heart failure, a workload of 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent, which would warrant the next higher, 100 percent, rating. The preponderance of the evidence is against a rating higher than 60 percent for CAD from April 23, 2021.

2. Entitlement to a rating in excess of 70 percent for PTSD is denied. 

The Veteran's PTSD is rated under criteria in Code 9411 (and the general rating criteria for mental disorders). A 70 percent rating is warranted when 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 (maximum schedular) rating is warranted for PTSD when 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. 38 C.F.R. § 4.130.

VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms listed after that phrase are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms; a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Thus, while certain symptoms might be present on isolated occasions, such symptoms must produce the contemplated levels of occupational and social impairment to provide a basis for the assigned of an increased rating in any particular period.

When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign an evaluation based solely on social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. 

In a March 2015 private psychiatric report, a private psychiatrist (Dr. W.F.) diagnosed PTSD. The Veteran reported he has been married since 1969, is satisfied with his marriage, and has a good relationship with his son and daughter. He reported avoidance of war movies, that he disliked being in crowds, and that he occasionally kicked his wife in his sleep, stating in the past that "if I get worse, make me walk off a building" with no intent to act on such thoughts, and denied having homicidal ideation. The examiner noted the following symptoms: nightmares, pervasive disgust, hostility /violence, vivid and intrusive memories of the trauma, memory difficulty, self-consciousness, trouble trusting others, feeling emotionally numb, flashbacks, hypervigilance, heightened startle response, avoidance of thinking about the trauma, avoidance of activities that remind him of the trauma, difficulty remembering important things about the trauma, difficulty with emotional expression, and somatic reactions to thoughts of trauma. On mental status examination, the Veteran was neatly dressed; had intact hygiene, good eye contact, open body posture; his mood was moderately anxious with an appropriate affect; he was oriented and was able to recall dates and events; his speech was appropriate; and, he had no bizarre behaviors. Psychological testing indicated severe anxiety and severe depression. 

On September 2015 VA examination, the Veteran reported he has a positive relationship with his family (noting he and his wife moved closer to his daughter and two grandchildren), and that he has a few friends. He reported his anxiety, irritability, and nightmares negatively impact his relationship with his wife. He reported that he has had violent nightmares during which he accidently struck his wife, but that the nightmares had decreased in frequency since [he began] seeing a private psychologist. He denied having suicidal or homicidal ideation. On mental status examination, he was fully alert and oriented, his mood was anxious, his affect was limited, he appeared to be a reliable historian, and he was found able to manage his financial affairs. His reported symptoms included: depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the PTSD 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 normal routine behavior, self-care and conversation.

An April 2017 private psychiatric report includes an update on the Veteran's psychiatric status. The provider noted that the Veteran participated in 60 psychotherapy sessions, mostly group sessions, since 2015. The Veteran reported a greater difficulty recalling more recent events and details of conversation, in addition to the symptoms reported in a March 2015 private psychology report. The provider opined that the intensity of the reported symptoms compromise the Veteran's overall level of functioning both interpersonally and vocationally resulting in his being permanently and totally disabled from gainful employment.

On February 2018 VA examination, the Veteran reported he remains married to his wife and has a very good relationship with her, two children, and three young grandchildren. He saw his daughter frequently and recently returned from a trip to Florida to visit his son. He reported he goes out to dinner with friends, is an active member of DAV, participates in social and fundraising events, and is a member of a local club where he frequently eats dinner with his wife. He also reported he is irritable and often has a hard time socially connecting with others. The examiner noted the Veteran appeared frustrated and depressed while describing his medical concerns and started crying while speaking of his trauma. His reported symptoms included: depressed mood, anxiety, 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. PTSD was diagnosed, and the examiner opined that the PTSD results in occupational and social impairment with reduced reliability and productivity.

At the February 2020 Board hearing, the Veteran testified that he has continued to see his private psychologist once a week (since 2014) and that the condition has worsened. He testified that his sleep disturbances and anger outbursts are worse, his judgment is worse, and he is experiencing mood swings.

In a March 2020 private psychiatric report, his private provider provided an update on the Veteran's psychiatric status. The provider noted the same psychological symptoms as were noted in prior reports, and observed that the Veteran has a prominent level of experiencing PTSD symptoms that have impacted adversely on the quality of all aspects of his life, vocationally and interpersonally. The provider explained that presently, with his treatment the Veteran is no longer attempting to utilize self-defeating coping strategies and is attempting to benefit from ongoing participation in treatment. Overall, the provider opined the efforts at coping through the years belied the level of seriousness and destructiveness of his PTSD. The provider opined that the intensity of chronic and persistent symptoms compromises the Veteran's overall level of functioning both interpersonally and vocationally resulting in his being permanently and totally disabled from any gainful employment.

On March 2021 VA examination, the Veteran reported he is still married to his wife although he gets easily frustrated and irritated with her. He reported he is having nightmares and flashbacks almost nightly and that he gets violent at night. He reports anger outbursts where he breaks things and punches holes in walls. He reported feeling down and depressed. He reported he isolates himself and has lost touch with two of his closest friends. On mental status examination, his appearance was fair, he had a normal affect; he was oriented x 4, alert, dressed appropriate to weather, and engaged through the assessment. His reported symptoms included: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, impaired impulse control, such as unprovoked irritability with periods of violence, and neglect of personal appearance and hygiene (nothing he takes one shower a week or one shower every other week). The examiner opined the Veteran was capable of managing his own financial affairs. The examiner opined the severity of symptoms has increased since the last VA examination and opined that the disability results in in occupational and social impairment with deficiencies in most areas. 

The November 2020 Board remand ordered development for private treatment records. In January 2021, the Veteran submitted a completed VA Form 21-4142 authorizing VA to obtain his private psychiatric treatment records from A&W Psychiatric Services, which appear to have been received in January 2021.

Based on this evidence, the May 2021 rating decision granted a 70 percent rating for PTSD effective December 17, 2014 (throughout the period for consideration). Accordingly, the question remaining is whether, at any time since December 17, 2014, the Veteran's PTSD symptoms and their impact on occupational and social functioning have approximated total occupational and total social impairment, warranting a 100 percent schedular rating. A preponderance of the evidence is against a finding that the Veteran's occupational and social impairment has approximated the total occupational and total social impairment level contemplated by a 100 percent rating.

There is no objective evidence of gross impairment in thought processes or communication, persistent danger of hurting self or others, grossly inappropriate behavior, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. Although he reported some suicidal ideation, he never exhibited, and was not shown to be, a persistent danger to himself or others. While the March 2021 VA examination noted angry outbursts where he punches the wall, the frequency, duration, and severity of this symptom were not such as to suggest total occupational and social impairment. The March 2021 VA examiner acknowledged that the Veteran's psychiatric symptoms had worsened since the last VA examination and opined that the disability now results in occupational and social impairment with deficiencies in most areas. While he has displayed some isolating behavior and irritability, he has maintained a relationship with his wife of over 50 years and maintains a very good relationship with his children and grandchildren. He has participated regularly in group and private psychiatric treatment sessions, and his private psychologist noted in 2020 that he was attempting to benefit from his ongoing participation in treatment, which of itself reflects some degree of social adaptability. That the Veteran is unemployable due to his psychiatric disability has been acknowledged by his award of a TDIU rating, throughout. His level of functional impairment, while significant, is not so severe as to result in the total occupational and total social level of impairment required for a 100 percent scheduler rating. 

Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Accordingly, the appeal in this matter must be denied.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested as such in service or to a compensable degree within a specified period following separation from service (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d).

A Veteran who, during military service, served in the Republic of Vietnam during the Vietnam era (January 1962 to May 1975) is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service and has contracted an enumerated disease, the veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). COPD is not a disease listed as entitled to a presumption of service connection based on exposure to herbicide agents under 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e).

Service connection is expressly precluded for a disability related to a Veteran's tobacco use in service. 38 U.S.C. § 1103; 38 C.F.R. § 3.300. However, service connection will not be precluded if the disability or death can be service-connected on some other basis than the use of tobacco products during service.

Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed, Cir. 2009). However, competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

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 claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102. 4.3. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert, 1 Vet. App. at 55.

3. 4. Service connection for a low back and neck disability is denied.

The Veteran's service treatment records (STRs) contain no mention of complaints, diagnosis, or injuries or treatment pertaining to his back or neck. On 1967 service separation examination, his spine was normal on clinical evaluation. 

A February 2003 private MRI of the cervical spine found anterolisthesis of C7-T1, central canal stenosis at the C7-T1, bilateral neuroforaminal narrowing at C5-6, C6-7, and C7-T1, and spondylitic changes of C5, C6, and C7. A March 2003 private treatment record (to evaluate complaints of neck pain with radiation into his left arm) notes the Veteran reported the neck pain started a couple of months prior, after golfing, for which he reported seeing a chiropractor. Additionally, he reported that a month prior he was using a snowblower, which caused some pain, and he experienced increased neck pain when he stepped awkwardly off a wall. The provider reviewed the February 2003 private MRI reported and cervical spondylosis and cervical stenosis were assessed, and advised the Veteran against participating in a golf game scheduled 6 days later but the Veteran indicated he was very committed to going.  

A May 2004 private treatment record notes the Veteran saw a neurologist, who found some nerve impingement on an EMG study, and he was referred to a neurosurgeon for potential surgical intervention. 

A December 2005 private MRI of the cervical spine found multilevel degenerative disc disease, lower cervical spondylosis with anterolisthesis of C7 on T1 with moderate to severe central stenosis and abnormal cord signal reflecting myelomalacia and/or edema.

A July 2012 private x-ray of the lumbar spine found a moderate degree of degenerative changes of the lumbar spine at multiple levels.

A September 2012 private treatment record notes new complaints of lower back pain that started 3 months prior without trauma, and radiating pain to the Veteran's right leg, which started 6 weeks prior. The Veteran informed his private primary care provider that the x-ray report of the lumbar spine showed degenerative changes throughout. Lumbar pain, lumbosacral spondylosis without myelopathy, and sciatica were assessed.

An October 2012 private MRI of the lumbosacral spine found right-sided disc herniation at L4-5, spinal stenosis, and L1-2 and L2-3 disc bulge.  

An October 2012 private treatment record notes the Veteran underwent a cervical laminectomy in 2005. 

A January 2014 private MRI of the lumbosacral spine found severe multilevel degenerative changes, disc herniation, and mild multilevel canal stenosis. The private radiologist noted disc degeneration at L3-4 and L4-5 has progressed since the last 2012 examination while right-sided disc herniation at L4-5 appears to have decreased.

The Veteran alleges he initially injured his back and neck falling from a 5-foot plywood pallet in Vietnam in 1967 when a helicopter came down faster than expected and he rolled off the pallet. See December 2014 statement in support of the claim and February 2020 hearing testimony. At the February 2020 hearing, he testified that following the incident with the pallet and helicopter, he did not go to sick call and self-treated his back and neck pain with over-the-counter pain medication. He testified that he underwent a cervical laminectomy in 2002 by a private neurosurgeon, but he was unable to get the treatment records from that provider.

On April 2021 VA neck examination, the Veteran reported a neck and back injury in service when he fell from a 5-foot-tall stack of pallets. Degenerative disc disease status post laminectomy, IVDS, and cervical radiculopathy were diagnosed. The examiner reviewed an October 2006 operative report which notes he underwent a decompressive laminectomy of the C6-7 and T1, and opined that the Veteran's neck disability is less likely than not related to his service, noting the current diagnoses are a result of a progression with aging and sports activities. The examiner noted that the record shows the Veteran was still playing golf in 2002 and there is no evidence of early onset degenerative disc disease or findings to suggest that the verbalized fall in service was substantial enough to contribute or cause the current conditions. Due to the lack of imaging [during the intervening period], the examiner could not state that there was a traumatic change, or a history of a fall contributing to his current condition. However, she observed that his 1967 service separation examination was normal and opined that even a history of treatment after service with a single fall would not contribute to the degenerative changes identified in 2003, explaining that disc disease and stenosis are chronic conditions that occur over time. The examiner noted degenerative disc disease was diagnosed in 2003 and there are several factors that can cause the disc to degenerate, to include drying out over time with daily activities, sports, or repetitive injuries and the disc becoming weak with age and loss of water content.

On April 2021 VA back examination, degenerative arthritis, degenerative disc disease, and spinal stenosis were diagnosed. The examiner opined that the back disability is less likely than not related to service, noting the Veteran's separation examination was normal and even if there was a fall when in service in 1967, such fall was not likely to contribute to the documented spinal changes in 2013 due to his age at the time of the incident in service. The examiner opined that the current disability etiology is a result of the drying out of the disc over time related to his daily activities such as his self-reported golfing and exercise. She stated that disc disease and stenosis are chronic conditions that occur over time and opined that the Veteran's reported history of pain and treatment after service does not support that this was due to the current condition of degenerative arthritis, disc disease, and spinal stenosis. She noted his separation examination was normal. The examiner explained that medical literature indicates that the discs become weak with age and lose water content and that there are no findings (including from diagnostic studies) to suggest the reported fall in 1967 caused early onset of arthritis, DDD, or spinal stenosis.

At the outset, it is noteworthy that deciding this matter has been complicated by the Veteran's failure to cooperate with the VA's attempts to obtain his private treatment records. The November 2020 Board remand noted that based on the Veteran's accounts, it appeared that private orthopedic treatment records are outstanding, and requested development for records of such treatment (which required his authorization). A December 2020 VA letter to the Veteran requested him to submit authorizations for VA to obtain records. In January 2021, the Veteran provided a VA Form 21- 4142 for A&W Psychiatric Services, Northern NJ Pulmonary Associates, University Radiology, and Southern Ocean Medical Center. VA obtained records from these four provides but not an authorization to obtain private treatment records from Seaview Orthopedics. It is assumed that either no such records now exist or that any existing records do not support his claim. Regardless, VA cannot acquire those records without his authorization.

It is not in dispute that the Veteran has degenerative disc disease of the cervical spine (first diagnosed in 2003, over 36 years following his separation from service) and degenerative disc disease of the lumbar spine (first diagnosed in 2012, over 45 years following his separation from service). The record does not show (and the Veteran does not allege) that cervical or lumbar spine degenerative disc disease was manifested in service or in his first postservice year. His testimony and reports on April 2021 VA examinations (of experiencing neck and back pain since service) are contradicted by more contemporaneous clinical notations indicating a more recent onset of pain. Notably, he reported to his private provider in March 2003 that his neck pain started a few months prior, after golfing (between approximately 2002  2003), and in September 2012 reported that his back pain started 3 months prior (in approximately June or July 2012). The clinical notations, which by being more contemporaneous and noted in a clinical context, merit greater probative value than the self-serving recollections of much earlier onset on April 2021 VA examinations and in Board hearing testimony. Accordingly, service connection for a chronic neck and back disability on the basis that such disability became manifest in service and persisted, on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), or based on continuity under 38 C.F.R. § 3.303(b), is not warranted.

What remains for consideration is whether the current neck and/or low back disability is otherwise shown to be etiologically related to the Veteran's service. The diagnosis and etiology of neck and low back disabilities are medical questions that require competent medical evidence. See Jandreau, 492 F.3d at 1377.

The preponderance of the competent (medical) evidence is against a finding that the Veteran's current neck and back disabilities are etiologically related to his service. The only competent (medical) evidence in the record regarding a nexus between the Veteran's neck and back disabilities and his service is in the opinions by the April 2021 examiner. The provider included detailed rationale against the claim (indicating that a fall in service with the level of treatment reported did not result in the development of chronic pathology such as degenerative disc disease or stenosis). The provider explained that degenerative disc disease is found in persons of older age and can be caused by repetitive injuries to the spine from sports and daily activities. The provider observed that the Veteran was still exercising and golfing as late as 2002 (more than 3 decades after service) and his service separation examination was normal (there was no nothing  to indicate early onset arthritis). The VA consulting provider is a medical professional, and is competent to offer the opinion, and the opinion reflects a familiarity with the Veteran's entire record and includes rationale that cites to both supporting factual data and medical principles. The opinion is probative evidence in the matter. The opinions are probative evidence and, without competent evidence to the contrary, are persuasive.

The Board has considered the Veteran's own assertions that his neck and back conditions are related to a single fall in service. However, he is a layperson, and his own opinion is not competent and probative evidence in this matter. He has not submitted any medical opinion or medical literature supporting his theory of entitlement.  See Jandreau v. Nicholson, 492 F.3d, 1372 (Fed. Cir. 2007).

The record does not include any competent evidence that the Veteran's neck and back disabilities are etiologically related to his service. Accordingly, the preponderance of the evidence is against these claims, and the appeal in the matters must be denied. Gilbert, 1 Vet. App. at 55.

5. Service connection for a pulmonary disability, to include COPD, is denied.

The Veteran alleges that his pulmonary disability is related to exposure to herbicide agents in service. He served in Vietnam, and is presumed to have been exposed to Agent Orange/herbicide agents in service.

A February 1966 STR notes treatment for an upper respiratory infection. On 1967 service separation examination, his lungs and chest were normal on clinical examination and a chest x-ray was normal. In a contemporaneous report of medical history, he denied experiencing shortness of breath or a chronic cough. 

A June 2002 VA treatment record notes the Veteran smoked 2 packs per day since age 18, and stopped smoking cigarettes 12 years prior, but occasionally smokes cigars.

A March 2011 private pulmonary function test (PFT) test found COPD.

A February 2012 private treatment record notes a past medical history significant for COPD.  The Veteran reported he smoked 1.5 packs per day for 20 years and quit 20 years ago. 

A December 2015 private x-ray of the chest found left basilar interstitial prominence, most likely atelectasis rather than pneumonia, and emphysema without congestion or pneumothorax.

A December 2015 private respiratory conditions DBQ (received January 2015) notes diagnoses of COPD and interstitial lung disease and "dioxin exposure." The provider noted that the Veteran was exposed to dioxin.

A July 2017 private pulmonary function report notes that the Veteran smoked cigarettes and cigars for 35 years; a severe lung defect was assessed.

At the February 2020 Board hearing, the Veteran testified that his lungs got progressively worse since he returned from Vietnam and finally worsened to the point where he saw a doctor in 2014. 

On April 2021 VA respiratory conditions examination, the Veteran reported he was exposed to herbicide agents during service, and smoked due to service (and has since quit). COPD and pulmonary fibrosis were diagnosed. The examiner opined that the respiratory disability is less likely than not related to service, noting he had an acute upper respiratory infection in 1966, has a history of smoking, his chest x-ray at separation was normal, and his exposure to chemical fumes in Vietnam was not long term. The examiner noted that the leading cause of COPD is cigarette smoke and the Veteran's reported a history of smoking on 2002 private treatment. While the examiner acknowledged 25 percent of people with COPD never smoked and that COPD may be related to long term exposures such as to air pollution and chemical fumes, the examiner noted the Veteran did not have such long term exposures as his service was from January 1966 to November 1967. She observed that abnormalities were not found at separation, as chest x-ray then was normal while later (2015/2017 postservice) chest x-rays were not normal. Additionally, the rationale regarding COPD includes such disorders as emphysema (diagnosed by his private provider). While she indicated that pulmonary fibrosis currently has no known etiology, she further indicated that there is no evidence that it is due to dioxin exposure. Citing to medical treatise, she indicated there is inadequate or insufficient evidence of an association between exposure to COIs and the prevalence of respiratory disorders. 

The preponderance of the competent (medical) evidence is against a finding that the Veteran's current COPD is etiologically related to his service. 

At the outset, it is noteworthy that the Veteran's diagnosed COPD (for which service connection is sought) is not a disease listed in 38 C.F.R. § 3.309 (e), and therefore the presumptive provisions under 38 U.S.C. § 1116 do not apply. The only respiratory disability currently recognized as associated with exposure to Agent Orange is respiratory cancers. See 38 C.F.R. § 3.309 (e).

The Board finds the opinion by the April 2021 VA examiner (that the Veteran's COPD is less likely than not related to service) to be probative evidence in the matter. The examiner expressed familiarity with the Veteran's record and provided a detailed explanation of rationale for the opinion against the claim. The provider explained that COPD is frequently associated with smoking and occasionally with long term exposure to air pollution and/or chemical fumes. The provider noted the Veteran's decades long history of tobacco use and observed he was not exposed long term to any potential environmental (such as to fumes) exposures while serving for about a year in Vietnam. Although the provider noted he served in Vietnam from January 1966 to November 1967, his VA form DD-214 notes that that was his total service and that he had 11 months and 25 days of foreign service. The provider further explained the URI in service was acute, noting that no respiratory abnormality was noted at separation. The VA consulting provider is a medical professional, and is competent to offer the opinion, and the opinion reflects a familiarity with the Veteran's entire record and includes rationale that cites to both supporting factual data and medical principles. 

The Board notes the December 2015 medical statement submitted in support of the claim but finds the but finds the opinion lacks probative value, as it only suggests  nexus to service (by mentioning dioxin), is i that respect conclusory, and does not include rationale that cites to medical principles or literature . It does not reflect consideration of other (nonservice-related) possible significant etiological factors for development of COPD (such as a 25-year history of smoking cigarettes and occasionally cigars) or account for the lengthy postservice interval before COPD (or any lung disease) was first clinically noted. 

The Board acknowledges that the Veteran may be sincere in his belief that his COPD is related to his exposure to herbicide agents; however, he is a layperson, and therefore not competent to provide a probative opinion in this matter. Because COPD is not listed in 38 C.F.R. § 3.309(e) (as a disease related to exposure to herbicide agents), to substantiate this claim under such theory of entitlement, there must be affirmative probative (competent medical) evidence that it is related to such exposure. The etiology of a respiratory disease first diagnosed more than a decade after service is a medical question beyond the scope of lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Considering the foregoing, the Board concludes that the VA examiner's opinion is persuasive, and that preponderance of the evidence is against a finding that the Veteran's current respiratory disability is etiologically related to his service. 

Accordingly, the preponderance of the evidence is against this claim. The benefit of the doubt rule does not apply; the appeal in the matter must be denied. Gilbert, 1 Vet. App. at 55.

 

 

GEORGE R. SENYK

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Naumovich, Associate 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.