Citation Nr: 21075991 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-36 499 DATE: December 22, 2021 ORDER An increased disability rating for the service-connected posttraumatic stress disorder (PTSD) in excess of 70 percent is denied. An increased disability rating for the service-connected coronary artery disease (CAD) in excess of 30 percent is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's psychiatric disorder is manifested by an overall disability picture more nearly approximating occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood; but not total occupation and social impairment. 2. During the appeal period, the Veteran's CAD has not been manifested by more than one episode of acute congestive heart failure during a one-year period; or, a workload of 5 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of 50 percent or less. 3. From November 14, 2021 onward, there is no evidence that the Veteran's CAD has been manifested by a workload of 5 METs or less resulting in heart failure symptoms. CONCLUSIONS OF LAW 1. The criteria for the assignment of a disability rating in excess of 70 percent, for the service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. The criteria for the assignment of a disability rating in excess of 30 percent for the service-connected CAD have not been met at any time during the appeal period. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.100, 4.104, Diagnostic Code 7005 (2020 and 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to March 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied, inter alia, a disability rating in excess of 70 percent for the Veteran's service-connected PTSD, and a disability rating in excess of 30 percent for the Veteran's service-connected CAD. The Veteran's notice of disagreement was received in December 2015. The RO issued a statement of the case in June 2018. The Veteran's VA Form 9, substantive appeal to the Board, was received in July 2018 in which the Veteran's former representative requested a Board hearing. In October 2021, the Veteran withdrew his request for a Board hearing. The Veteran's request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704 (e). INCREASED RATING Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 1. Entitlement to a disability rating in excess of 70 percent for service-connected PTSD. The Veteran seeks a rating in excess of 70 percent for his service-connected PTSD. Throughout the appeal period, the Veteran's PTSD has been assigned a 70 percent evaluation under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 50 percent rating is assigned where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; 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. Id. Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation 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." 38 C.F.R. § 4.126(a). As previously noted, for the entire appeal period, the Veteran's psychiatric disorder is rated as 70 percent disabling. Therefore, to warrant a higher rating, the evidence must show that such disability resulted in psychiatric symptomatology that more nearly approximates total occupational and social impairment. The Veteran underwent a VA PTSD examination in October 2017. The examiner diagnosed the Veteran with PTSD. As to his social functioning, the Veteran lives with his 3rd wife, recently moved to another state, has no friends, tries to keep busy, but finds it is difficult without a structured schedule. As to his work life, he retired from trucking in 2012. As to current mental health, the Veteran is currently receiving mental health care, takes medication for sleep and anxiety, and stopped taking an anti-depressant due to the side effects. As to current reported symptoms, the Veteran reported: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; difficulty in understanding complex commands; 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; suicidal ideation; disorientation to time or place. As to behavioral observations, the Veteran displayed a dysphoric mood with flat affect, was somewhat guarded, had trouble remembering when events occurred, appeared to have trouble with his hearing, was oriented x4, and was cooperative. The examiner concluded that the Veteran's psychiatric disorder resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. VA treatment records are consistent with the Veteran's reports of the severity of his symptoms in this case. An October 2016 Mental Health Note shows the Veteran's thought content evidences no hallucinations, delusions, paranoia, or perceptual aberration; no apparent or expressed dangerousness to self or others; and cognition, memory, insight, and judgment appear intact. In a November 2016 Mental Health Consult, the Veteran showed no signs of hallucinations (auditory or visual), no delusions, no suicidal ideation, had insight, and good judgement. An October 2017 Telehealth Addendum indicated no hallucinations or delusions. A December 2014 medical opinion regarding the Veteran's PTSD and potential unemployability, the examiner noted, "The veteran's PTSD has not increased. He has no intervention to substantiate an increase in severity," and concluded: The Veteran's PTSD in and of itself would not render this Veteran totally incapable of obtaining or maintaining either physical or sedentary gainful employment. After a careful review of the evidence, the Board concludes that the Veteran's overall disability picture, during the appeal period, is manifested by symptomatology that has more nearly approximated occupational and social impairment with deficiencies in most areas, rather than psychiatric symptomatology that more nearly approximates total occupational and social impairment. As such, an increased disability rating in excess of 70 percent, is not warranted. The Veteran has remained married, and there is no indication that the Veteran is unable to adequately care for himself. Moreover, the Veteran maintains involvement in his treatment, showing a clear commitment to improving his symptoms. The Veteran did not have issues with hygiene and did not suffer from hallucinations, delusions or a lack of insight into the severity of his disability. Moreover, the Veteran was not in danger of hurting others. Although the overall disability picture reflects deficiencies in most areas, the Veteran has remained in touch with reality and committed to treatment throughout the appeal period. At no point has the Veteran's psychiatric disorder resulted in total occupational and social impairment. As the preponderance of the evidence is against the Veteran's claim of entitlement to a rating in excess of 70 percent for the service-connected PTSD, the benefit of the doubt doctrine is inapplicable, and the Veteran's claim for an increased rating must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to a disability rating in excess of 30 percent for service-connected CAD. The Veteran seeks a rating in excess of 30 percent for his service-connected CAD. The Veteran's service-connected CAD is evaluated as 30 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7005. During the pendency of the appeal, the rating criteria for evaluating diseases of the heart under 38 C.F.R. § 4.104 were amended effective November 14, 2021. 86 Fed. Reg. 107 (Sep. 30, 2021). The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). As it pertains to veterans law, in Kuzma v. Principi, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the amended regulation cannot be applied prior to the effective date unless the regulation explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran, the revised criteria may not be applied until the effective date of the change. 38 U.S.C. § 5110 (g). Under the pre-amended Diagnostic Code 7005, a 10 percent rating is warranted for workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, continuous medication required. A 30 percent rating is warranted for workload greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for 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; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating under Diagnostic Code 7005 is warranted for chronic congestive heart failure, or; 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. 38 C.F.R. § 4.104. According to Note (2): 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. Recent amendments to Diagnostic Code 7005 are effective November 14, 2021. The amendment created a General Rating Formula for Diseases of the Heart, and directs to rate under this formula unless the particular diagnostic code directs otherwise. Under the amended, General Rating Formula, a 10 percent rating is warranted for workload of 7.1 METs to 10.0 METs resulting in heart failure systems; or, continuous medication required for control. A 30 percent rating is warranted for workload of 5.1 METs to 7.0 METs resulting in heart failure systems; or, evidence of cardiac hypertrophy or dilatation confirmed by electrocardiogram or equivalent. A 60 percent rating is for a workload of 3.1 to 5.0 METs resulting in heart failure symptoms. A 100 percent rating is for workload of 3.0 METs or less resulting in heart failure symptoms. 38 C.F.R. § 4.104 (effective November 14, 2021). According to Note (3): For this general formula, heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. The Veteran underwent a VA Heart examination in October 2017. The examiner diagnosed CAD to include a treatment plan of continuous medication. The examiner noted greater than 5 METs but not greater than 7 METs consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower), and heavy yard work. The METs level reflects the lowest activity level at which the Veteran reports symptoms of fatigue and dizziness attributable to his cardiac condition. The examiner further noted the Veteran's left ventricular ejection infarction (LVEF) at 61 percent. Based on these findings, there is no evidence experienced heart failure symptoms such as fatigue or dizziness at a workload less than 5 to 7 METs consist with his current 30 percent rating. Accordingly, even if the new regulation is more favorable to the Veteran there is no evidence that a rating in excess of 30 percent would be warranted under the regulation from November 14, 2021 onward. (Continued on the next page) The Veteran is competent to describe certain observable symptoms associated with his disabilities, such as dizziness and fatigue. The Veteran's history and reported symptoms have been considered, including as presented in the medical evidence discussed above, and are contemplated by the disability ratings that have been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence when evaluating the pertinent symptoms of the service-connected disabilities at issue. As such, the Veteran's lay reports concerning matters that he is competent to address, do not, in this case, outweigh the competent medical evidence with regard to the specialized evaluations of functional impairment, symptom severity, and details of clinical features of the service-connected conditions at issue. As the preponderance of the evidence is against the Veteran's claim of entitlement to a rating in excess of 30 percent for the service-connected CAD, the benefit of the doubt doctrine is inapplicable, and the Veteran's claim for an increased rating must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.