Citation Nr: 21075233 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-64 780 DATE: December 17, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for other specified trauma and stress related disorder is denied. Entitlement to service connection for hypertension to include as secondary to herbicide agent exposure is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's other specified trauma and stress related disorder was not manifested by occupational and social impairment with reduced reliability and productivity. 2. The Veteran's hypertension is not shown to have incurred in service or manifested with one year of service separation; hypertension is not shown to have been caused by service to include herbicide exposure. 3. The Veteran's service-connected disabilities do not preclude him from securing or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for other specified trauma and stress related disorder have not been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9422. 2. The criteria for service connection for hypertension have not been met. See 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for a TDIU have not been met. See 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to August 1968 to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision and a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in January 2019. The increased rating claim for other specified trauma and stress related disorder was remanded for a VA examination (VAX) to determine the severity of the disability. The service connection claim for hypertension was remanded for a VAX as one had not been provided. TDIU was remanded as inextricably intertwined with the increased rating claim and service connection claim. A VAX was provided for the increased rating claim. In regard to the service connection claim for hypertension, the Veteran failed to RSVP for his VAX and the VAX was canceled. There is no indication in the record that he did not receive notice of his scheduled VAX. His failure to report for the VAX was discussed in the May 2020 supplemental statement of the case (SSOC). He has not provided any explanation as to why he failed to RSVP and has not requested to reschedule his VAX. Accordingly, VA has satisfied its duty to assist with respect to these claims and adjudication may proceed. INCREASED RATING 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. See 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. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). 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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. See Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). 1. Entitlement to an initial rating in excess of 30 percent for other specified trauma and stress related disorder. The Veteran seeks an initial rating in excess of 30 percent. As this claim stems from the initial grant of service connection, the relevant period on appeal is from the date of service connection, here November 22, 2015, forward. Following consideration of the record, entitlement to an increase rating is not warranted for any portion of the period on appeal. Turning to the record, in February 2016 the Veteran was afforded a VAX. He was found to be alert and oriented. He had good hygiene and eye contact. His mood was euthymic, and affect was full range. His speech was clear and goal oriented. He had no thought disorganization. He had no psychosis or mania. He denied suicidal ideation (SI) or homicidal ideation (HI). He was found capable to manage his financial affairs. He reported no psychiatric admissions. He reported being interested in wood working, crafts, and being in the outdoors. He reported bi-weekly contact with 2 friends and monthly contact with his siblings. He reported being a handyman for other people, cleaning, and watching TV. Examination documented he graduated from high school in 1964, graduated with an associate degree in liberal arts in 1973, and graduated with a bachelor's degree in human resources management in 1994. In addition, he worked at Michigan Gas Company from 1964 to 1965, worked at general motors (GM) from 1965 to 1966 and from 1968 to 1969, worked at Chrysler body layout design group from 1969 to 1970, worked at Michigan Wisconsin Pipeline Company from 1970 to 1973, worked at Chevrolet facility department from 1973 to 1975, worked at GM from 1976 to 1999, worked at New Venture Gear from 2000 to 2002, worked at American Axel from 2003-2005, worked at Aerotech from 2005 to 2008, and worked as a handyman from 2008 to the present. Detroit VAMC treatment records from June 2016, confirm the Veteran retired from GM with a pension in 1999. June 2016 records also document, the Veteran was oriented to all spheres. He was casually dressed in good hygiene. His speech was clear and fluent. His mood was euthymic, and affect was positive. He denied auditory or visual hallucinations. His thought process was intact and free of delusions. He had good insight and judgment. There was no indication of cognitive impairment. He reported being married for 50 years and only being married one time. His relationship was described as tolerable. He had a daughter and granddaughter. His son was killed in a motorcycle accident in 2001. He had one grandchild from his son. He was involved in both grandchildren's lives. He described his relationship with his family at the present as good. In a July 2016 addendum opinion, the VA medical examiner found that he had the following symptoms for VA rating purposes: anxious, depressed mood, and impaired sleep. In September 2016, the Veteran's spouse attested to him having nightmares, depression, and a lack of motivation. Detroit VAMC treatment records show that in August 2017, the Veteran was alert, cooperative, and pleasant. In December 2019, the Veteran was afforded another VAX. Overall, the examiner determined that the symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The VA medical examiner found that he had the following symptoms for VA rating purposes: anxiety and chronic sleep impairment. During examination, the Veteran was accompanied by his wife. He was alert and oriented. He had good hygiene and fair eye contact. His mood was dysphoric, and affect was appropriate. His speech was clear and goal oriented. He had no thought disorganization, signs of psychosis, or mania. He denied SI or HI. He reported that the onset of his depression was when he retired. He reported having contact weekly with 2 friends (house visits) and no contact with his granddaughter. He had weekly phone contact with his 2 brothers and monthly phone contact with his oldest nephew. He occasionally attended his grandson's school events. His daily activities included getting up around 5am and driving his grandson to and from school, listening to music, watching the news, and small house projects. Per the examiner, the Veteran was capable of managing his financial affairs. There was no evidence of panic attacks, obsessional rituals, impaired affect or speech, impulse control, neglect of personal appearance and hygiene, delusions, or hallucinations. There was no impairment in his ability to understand complex commands, short- and long-term memory, judgment, abstract thinking, ability to function independently appropriately or effectively, or ability to perform activities of daily living. Detroit VAMC treatment records thereafter show that the Veteran denied SI in February 2016, July 2016, August 2016, July 2017, January 2018, July 2018, and January 2019. Detroit VAMC treatment records in January 2018 show the Veteran's mood and affect were appropriate. He was calm and cooperative. He was alert, oriented, and in no acute distress. Based on the above, the Board finds that the frequency, severity, and duration of the Veteran's symptoms did not result in the level of impairment required for a disability rating of 50 percent. The severity, frequency, and duration of his symptoms more closely approximate the symptoms associated with a 30 percent rating, which is less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. The totality of the evidence fails to support a finding of occupational and social impairment with reduced reliability and productivity. As the evidence fails to show that the Veteran's symptoms caused 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. Overall, the evidence shows that the Veteran has been able to establish and maintain effective work and social relationships. As he has been married for 50 years, and maintained contact with his nephew, 2 friends, 2 brothers, and grandson. He has been able to maintain a daily and functional routine of getting up at 5 am and taking his grandson to and from school. Moreover, he has continued to pursue employment during the appeal. That said, despite, the Veteran's report of depression, he has shown motivation to maintain a daily functional routine, maintain contact with friends and family, and continued to do small house repairs and small house projects. Finally, throughout the appeal period, the Veteran's speech was normal, his insight and judgment were intact, he was alert and oriented, and his thought process was normal and coherent. Consideration has been given to the Veteran and his wife's assertions that he is entitled to an increased rating. These lay statements are competent and credible in describing his symptomology. Nevertheless, even considering these assertions, the weight of the medical and lay evidence simply does not show occupational and social impairment with reduced reliability and productivity. The contrary is shown. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise. See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Here, the preponderance of the evidence is against the claim. SERVICE CONNECTION As a preliminary matter, the action to be taken in instances where a veteran fails to report for a VAX depends on if the VAX was scheduled in connection with a service connection/initial rating claim or a claim for an increase. A service connection claim or an initial rating claim is classified as an original compensation claim under 38 C.F.R. § 3.655 (b), so where the Veteran, like here, fails to report for such an VAX, the case shall be rated on the evidence of record. See Fenderson v. West, 12 Vet. App. 119, 125 (1999); see also Turk v. Peake, 21 Vet. App. 565, 568-70 (2008). In contrast, where a veteran fails to report for an VAX scheduled in connection with a claim for an increase or any other original claim (such as the current increased rating issue on appeal), the claim shall be denied. See 38 C.F.R. § 3.655 (b). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § § 3.303(a). All three elements must be established by competent and credible evidence in order that service connection may be granted. For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Exposure to certain herbicide agents, include the one commonly referred to as Agent Orange, shall be presumed for any Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975). See 38 U.S.C. § 1116 (f). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, ischemic heart disease, among other diseases, shall be service connected even though there is no record of such disease during service. See 38 C.F.R. § 3.309 (e). "Service in the Republic of Vietnam" may include service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. See 38 C.F.R. § 3.307 (a) (6) (iii). It is established law that a Veteran must have set foot on the land mass of Vietnam or have been present in the inland waterways (so-called "brown water" naval activity) of that country during the statutory period in order to be considered to have had qualifying military service in Vietnam and, in turn, presumed exposure to herbicides. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). 2. Entitlement to service connection for hypertension to include as secondary to herbicide agent exposure. The Veteran seeks service connection for hypertension, to include as due to in-service herbicide exposure. Following consideration of the record, entitlement to service connection is denied. As to current disability, the record indicates that the Veteran was first formally diagnosed with hypertension in April 2014. See July 2018 Detroit VAMC records. Prior to this, March 2011 treatment records indicate he had borderline hypertension. Thus, the first element of Shedden is met. As to service, the Veteran's service treatment records (STRs) do not show any discussion of symptoms, treatment, or diagnosis of hypertension. However, his personnel records reflect that he has verified "boots on the ground" service in Vietnam. They also show that he was designated to Vietnam counter offense in May 1968. Given his Vietnam service, Agent Orange/herbicide exposure is conceded. Thus, the second element of Shedden is met. What remains is nexus. Although the presumption of service connection due to herbicide exposure does not apply to the Veteran's diagnosis of hypertension, he may still establish service connection under that theory of entitlement by affirmative evidence that such exposure caused the disability. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Here, there is no competent (medical opinion) evidence in the record that relates the Veteran's diagnosed hypertension to his exposure to herbicide agents/Agent Orange. There is also no medical opinion which correlates the Veteran's hypertension to his service generally. To that end, he has not submitted any such evidence (or identified any for VA to obtain on his behalf). Moreover, although the Board specifically remanded the claim for a VA examination and medical opinion in this matter, the Veteran failed (without good cause) to RSVP for the scheduled examination, and therefore such could not be completed. Given the above, a nexus to service cannot be established such as to warrant service connection. Likewise, hypertension may also be service connected on a presumptive basis if it manifested within one year after the Veteran's active service. 38 U.S.C. §§ 1110, 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). However, here, there is no evidence, to include medical records, that the Veteran's hypertension was manifested to a compensable degree within the first year following service separation. 38 C.F.R. §§ 3.307 (a)(3). Moreover, the Board finds that the weight of the evidence does not show a continuity of symptomatology associated with the Veteran's hypertension under 38 C.F.R. § 3.309 (a). To that end, the record contains no complaints of symptoms associated with hypertension until 2011, at least 30 years after separation from service. The Board finds this lapse of time, between service separation and the earliest documentation of the Veteran's current disability, weighs against service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised). In that regard, even decades post service, in 2011, records indicate the Veteran's diagnosis was only borderline hypertension which is not suggestive of a longstanding condition. The Board thus finds that the weight of the evidence record does not support entitlement to service connection. Consideration has been given to the Veteran's lay statements, including his contention that his hypertension is related to herbicide exposure sustained during service. As a lay person, he is competent to report observable symptomatology, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of his hypertension. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, his opinion is insufficient to provide the requisite nexus. In light of all of the evidence and considerations discussed above, the Veteran's claim of service connection for hypertension is denied. The preponderance of the evidence being against the claim, the benefit-of-the-doubt standard of proof does not apply. See 38 U.S.C. § 5107 (b). TDIU 3. Entitlement to a TDIU is denied. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, to qualify for individual unemployability, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). Section 4.16 (a) provides a rating hurdle for schedular consideration of a TDIU. If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran seeks a TDIU. Per the Veteran's July 2016 VA Form 21-8940, TDIU entitlement was predicated on impairments associated with service-connected and non-service-connected disabilities. Specifically, he asserted the following disabilities prevented him from securing or following a substantially gainful occupation: psoriasis of the scalp, PTSD, abnormal mitral valve, chloracne, tinnitus, hypertension, high blood pressure, bilateral hearing loss (BHL), cardiovascular disease, sinus condition, diabetes, and a back condition. For clarity, in determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A such, the Board will only consider service-connected disabilities. That said, during the relevant period on appeal the Veteran has solely been service-connected for his 30 percent rated other specified trauma and stress related disorder, tinnitus rated at 10 percent, and bilateral hearing loss (BHL) rated noncompensable. Showing a combined rating under Table I, of 37. The Veteran does not meet the schedular criteria under section 4.16 (a). Where a Veteran does not meet the percentage requirements, but there is evidence that the Veteran is unable to obtain or maintain substantially gainful employment, the claim for TDIU will be referred to the Director of VA's Compensation and Pension Service. See 38 C.F.R. § 4.16 (b). If the Veteran does not meet the percentage requirements, the Board cannot grant TDIU in the first instance, but must first ensure that the TDIU claim is referred to the Director of Compensation and Pension for adjudication. See Bowling v. Principi, 15 Vet. App. 1 (2001); see also Christensen v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 1907 (explaining that the 2018 amendment to 38 C.F.R. § 3.321 (b) did not alter the requirement that the Board refer a claim for an extraschedular TDIU to the Director of Compensation Service in the first instance). Following consideration of the record, the Board finds that referral of the claim to the Director of VA's Compensation and Pension Service is not warranted. Here, the evidence of record does not raise the reasonable possibility that the Veteran could not work due to symptomatology associated solely with his service-connected disabilities. As to education, as discussed above, the Veteran has an associate degree in liberal arts and a bachelor's degree in human resources management. See December 2019 VAX. As to employment, Detroit VAMC treatment records confirm retirement from GM in 1999 and work thereafter with Chrysler in 1999 in auto body layout and design until being laid off. The December 2019 VAX shows that he worked as a buyer for New Venture Gear from 2000 to 2002 and was laid off. He worked as a consultant from 2003 to 2005 for American Axel and was laid off. He worked as a consultant from 2005 to 2008 for Aerotech and was laid off. From 2008 to the present, he worked as a handyman. As to physical impairments, there is no indication from the April 2016, January 2018, and May 2019 VAXs that the Veteran's tinnitus and BHL render him unable to secure and follow a substantially gainful occupation. Moreover, there is no indication from the February 2016 VAX, July 2016 addendum opinion, and December 2019 VAX that the Veteran's other specified trauma and stress related disorder render him totally unable to secure and follow a substantially gainful occupation. Based upon the available record, the Board finds the evidence does not demonstrate that the Veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment. Although the medical evidence demonstrates that the Veteran's service-connected BHL, tinnitus, and other specified trauma and stress reasonably represent an occupational impairment, the overall evidence of record is not indicative of unemployability even when combined. Moreover, the Veteran has not provided information which establishes that his service-connected disabilities, alone, would preclude all forms of employment especially considering his extensive educational history. In that regard, his skill set, multifaceted work history, and education all support a finding that he can work and in turn, that finding employment in such a field/setting is obtainable. Referral to the Director of the Compensation Service for extra-schedular consideration is not warranted. Entitlement to a TDIU is not warranted. J. L. BURROUGHS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.