Citation Nr: 21072681 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-45 464 DATE: December 6, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for vascular disease, to include as secondary to herbicide exposure and/or secondary to service-connected coronary artery disease (CAD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran's PTSD symptoms have not resulted in total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 70 percent for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to July 1971, with service in the Republic of Vietnam from December 1969 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) from December 2012 and May 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in December 2019 for further development. 1. Entitlement to a disability rating in excess of 70 percent for service-connected PTSD is denied. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. The Veteran's PTSD is currently evaluated as 70 percent disabling under 38 C.F.R. § 4.130, DC 9411. In pertinent part, a 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent rating requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating the level of disability of an increased disability rating claim is from one year before the claim was filed; in this case, January 16, 2012, one year prior to the Veteran's January 16, 2013, claim, until VA makes a final decision on the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). A February 2013 VA psychiatry note reflects that the Veteran reported "I am doing okay." He stated that he feels his current medications give him a balance, that his sleep has been fair, that he has intermittent nightmares related to his military service, and that he had no suicidal intent. A May 2013 PTSD screening noted that the Veteran experienced repeated disturbing memories in the past month, felt distant and cut off from people, felt depressed, and felt little interest in doing things. See May 2013 CAPRI Medical Record. A June 2013 letter from the Veteran's VA doctor states that he has severe PTSD which prevents him from being able to work. A June 2013 psychiatry note reports that the Veteran has just started chemotherapy and is moody but that his medication helps; he reported no suicidal intent but stated that sometimes he felt some hopelessness related to his medical issues. An October 2013 VA psychiatry note reflects that the Veteran reports doing better now that his chemotherapy is finished, that his sleep is fair, that he still has nightmares every night and believes his medication may not be helpful, that he is more social, that his wife has noticed his mood is better, that he is less isolated, and that he has no suicidal or homicidal intent. A January 2014 VA psychiatry note reflects that the Veteran reported an improvement with his nightmares due to his medication, and that he denied suicidal intent, explaining that he wants to live but finds this a daily struggle with his medical issues. An April 2014 VA examination report reflected the Veteran's PTSD manifested in occupational and social impairment with reduced reliability and productivity. The examiner noted the Veteran's PTSD symptoms included depressed mood, anxiety, and chronic sleep impairment, as well as irritability, quick to get angry, and self-isolation. The Veteran reported he stopped working about 2 years prior after undergoing bilateral knee amputation. The Veteran reported that he also had ongoing problems with a supervisor and problems coping with on-the-job stressors prior to his retirement. Finally, the Veteran reported that he felt his PTSD condition was unchanged, stating it was "the same, not worse." The VA examiner concluded that, based on the Veteran's self-report and his psychiatric provider's report, his PTSD was relatively stable and there was likely little change since his previous examination. See April 2014 VA Examination. A May 2014 VA psychiatry note reports that the Veteran has had trouble with recurrent symptoms since being rejected for a 100 % VA disability rating for his PTSD and that he feels it has triggered his PTSD symptoms; the suicide risk assessment found no report of suicidal ideation in the last 30 days. An August 2014 VA psychiatry note reflects that the Veteran reported getting down about his health, that he had intermittent depression, and that he had no suicidal intent, psychosis, or mania. A December 2014 VA psychiatry note reflects that the Veteran reported he was doing okay, that he was frustrated with the system at the VA, that his current medications helped keep him stable, and that he had no psychosis, mania, or suicidal intent. An April 2015 VA psychiatry note reflects that the Veteran reported that he was doing okay, that the still had some anxiety, that he felt his medications were helpful in balancing him out, that he didn't have many interests or joy, and that he had no psychosis, mania, or suicidal intent. An August 2015 VA psychiatry note found that he was doing okay, that his medicine was still working, and that he had no psychosis, mania, or suicidal intent. At a January 2016 VA psychiatry visit the Veteran reported that he was doing okay, that not much had changed, that his medication was helping, and that he had no psychosis, mania, or suicidal intent. A May 2016 VA psychiatry note reflects that the Veteran reported doing all right, that he enjoyed his family at times but felt a loss of purpose, that he was overall doing "pretty good" and that he had no psychosis, mania, or suicidal intent. At a February 2017 VA psychiatry visit, the Veteran reported that he was doing "so so", that he was not interested in making any medication changes or returning to therapy, that he was frustrated with life, health, and the world around him; the VA psychiatrist noted no mania, psychosis, or suicidal intent. At an August 2017 VA psychiatry visit, the Veteran reported that he was "ok", that things were stable, that he was doing fine; no psychosis, mania, or suicidal intent was recorded. At his February 2018 VA psychiatric visit, the Veteran again reported that he was "ok" and no psychosis, mania, or suicidal intent was recorded. At his February 2019 VA psychiatry visit, the Veteran reported that he was doing "ok...the same...the meds work...I'm doing ok." He stated that he tries to work out to stay in shape. No psychosis, mania, or suicidal intent was found. At his August 2019 VA psychiatry visit, the Veteran stated that he was "surviving", that he was okay with his medication, that his memory was fine, but he struggled with making decisions, and that he was concerned about his son. No psychosis, mania, or suicidal intent was found. At his February 2020 VA psychiatry visit, the Veteran reported no changes, stated that his medication helped, and that although he had no suicidal intent, he "could have died yesterday and it wouldn't matter." No psychosis, mania, or suicidal ideation was found. The Veteran was afforded a VA examination in February 2020, where his PTSD manifested in occupational and social impairment with reduced reliability and productivity. The Veteran reported that he had contact with his living siblings, and that he had been married for 42 years with no significant problems. He stated that he spent his time hanging around the house and that he had no close friends. He reported that he could not be bothered with friendships, and that he attempted to visit the gym once a week but that there were too many people there and he became paranoid. He stated that he was last employed in 2011 and discontinued his employment because both of his legs were amputated that year; he reported issues with his coworkers when he was employed, that he was chronically tardy, and that he had issues with productivity because he became confused easily and had issues making a decision. He reported that he was promoted from custodian to supervisor. The Veteran stated that he had issues falling asleep and that he had nightmares every night. He denied any suicidal or homicidal ideation. The examiner noted the Veteran's PTSD symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, 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 an inability to establish and maintain effective relationships. The examiner noted that the Veteran's thought processes were linear and that he did not display any perceptional issues or psychotic features during the exam. His grooming and appearance were found to be appropriate. In regard to the Veteran's occupational functioning based on his mental health, the examiner stated that the Veteran's ability to understand, follow and retain instructions was not impaired, nor was his ability to sustain concentration to perform simple tasks. His ability to sustain concentration to task persistence and pace, as well as his ability to respond appropriately to coworkers, supervisors, or the general public was considered to be moderately impaired. Finally, his ability to respond to changes in the work setting was considered to be mild to moderately impaired. Based on the foregoing, the Board concludes that the Veteran's PTSD symptoms have not resulted in total occupational and social impairment. Specifically, the Veteran's PTSD symptoms have not resulted in, or more nearly approximated, total social impairment. 38 C.F.R. § 4.7. Although he reported having no close friends and that he could not be bothered with friendships, he has maintained relationships with his family. In particular, he has reported contact with his living siblings and stated that he did not have any significant issues with his wife of 42 years. As such, the preponderance of the evidence reflects that the criteria for a 100 percent rating are not met, in the absence of total occupational and social impairment. Consequently, the claim for an increased rating for service-connected PTSD is denied. REASONS FOR REMAND 1. Entitlement to service connection for vascular disease, to include as secondary to herbicide exposure and/or secondary to service-connected CAD is remanded. The Veteran contends that he developed vascular disease as a result of his in-service exposure to Agent Orange. See July 2017 Correspondence. The Board ordered VA examinations for both direct and secondary service connection in its December 2019 remand. An opinion was obtained in February 2020, where the examiner opined only that the Veteran's vascular condition was not proximately related to his CAD; the examiner did not address the issue of aggravation, nor address the issue of direct service connection. Another opinion was obtained in July 2020, where the examiner opined that the Veteran's vascular disease was not related to service; the examiner did not discuss the Veteran's Agent Orange exposure at all. The examiner again offered a secondary service-connection opinion, stating that the Veteran's vascular condition was not related to his service-connected CAD. The examiner did not offer a clear opinion on aggravation and instead discussed the timeline of when the Veteran began feeling pain in his lower extremities under the prompt for aggravation. The Board finds the February 2020 and July 2020 VA Examinations inadequate, as they do not address the Veteran's assertion that his vascular disease is related to his Agent Orange exposure, nor do they adequately address his assertion that it is secondary to his service-connected CAD. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, a new examination is warranted. 2. Entitlement to a TDIU due to service-connected disabilities is remanded. The Veteran asserts that he is unable to work because he underwent a bilateral leg amputation as a result of his vascular condition. Because a decision on the remanded issue of entitlement to service connection for vascular disease could impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined, and a remand of the claim for a TDIU is also required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the etiology of the Veteran's vascular disorder, to include as secondary to herbicide exposure and/or secondary to service-connected CAD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) For each diagnosed vascular disorder, the examiner must opine whether it was at least as likely as not (50 percent or greater probability) had onset in, or is otherwise related to active service, to include the Veteran's conceded exposure to Agent Orange. (b.) For each diagnosed vascular disorder, the examiner must opine whether it was at least as likely as not (50 percent or greater probability) caused by the Veteran's service-connected CAD. (c.) For each diagnosed vascular disorder, the examiner must opine whether it was at least as likely as not (50 percent or greater probability) aggravated by (i.e., worsened by) the Veteran's service-connected CAD. * The examiner is advised that aggravation may include temporary worsening, or flare-ups, of a disability. All opinions must be accompanied by a rationale. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Mohammad 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.