Citation Nr: 21077543 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 19-08 401 DATE: December 30, 2021 ORDER Entitlement to an initial 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) from July 15, 2016, is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for a heart disability, to include ischemic heart disease (IHD) and atrial fibrillation, is remanded. FINDING OF FACT From July 15, 2016, the Veteran's PTSD more nearly approximated occupational and social impairment with deficiencies in most areas; but did not at any time more nearly approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial 70 percent rating, but no higher, for PTSD from July 15, 2016 have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to June 1968. This case comes before the Board of Veterans' Appeals (Board) from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to service connection for PTSD and assigned a 30 percent rating, effective July 15, 2016. In August 2017 the Veteran filed a notice of disagreement (NOD) as to his PTSD and in September 2017 the RO issued a statement of the case (SOC). In April 2018 the Veteran filed a substantive appeal (via VA Form 9). This case also comes before the Board from an October 2018 rating decision which denied entitlement to service connection for IHD and increased the Veteran's rating for his PTSD from 30 percent to 50 percent, effective August 31, 2018. In November 2018 the Veteran filed a notice of disagreement (NOD) as to his IHD and in February 2019 the RO issued a statement of the case (SOC). In February 2019 the Veteran filed a substantive appeal (via VA Form 9). As a final preliminary matter, the Board notes that a separate appeal stream was developed by the RO for the Veteran's PTSD. In April 2021 the Veteran filed a Fully Developed Claim (VA Form 21-526EZ) and in response the RO issued a May 2021 rating decision. In response the Veteran submitted a July 2021 Decision Review Request: Higher Level-Review (VA Form 20-0996). As the Veteran had already submitted a substantive appeal to the Board as to his PTSD, Higher-Level Review is not warranted. Higher Initial Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). PTSD When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating 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). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Under the General Rating Formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted where 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. Under the General Rating 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. The Board must then determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran contends that his disability rating should be higher, and, for the following reasons, the Veteran's PTSD symptoms and impairment more nearly approximate the criteria for a 70 percent rating. An October 2016 VA psychologist noted that the Veteran's PTSD causes him occupational and social impairment due to mild or intransient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or, symptoms controlled by medication. The VA psychologist noted the Veteran experienced symptoms such as anxiety, flattened affect, persistent and exaggerated negative beliefs or expectations of oneself, hypervigilance, exaggerated startle response, and problems with concentration. The Veteran reported that he has a good relationship with his wife, daughters, and grandchildren. The Veteran engages in sports and spends time with friends. In the August 2017 NOD the Veteran stated that he gets less than 5 hours of sleep and that he has considered suicide. A September 2018 VA psychologist noted that the Veteran's PTSD causes him occupational and social impairment with reduced reliability and productivity. The VA psychologist noted that the Veteran's occupational functioning is impaired due to difficulty maintaining effective relationships, disturbances in mood, increased anxiety, and ruminative thinking patterns and worrying that is difficult for him to control or redirect. The VA psychologist noted the Veteran experienced symptoms such as anxiety, flattened affect, persistent and exaggerated negative beliefs or expectations of oneself, hypervigilance, exaggerated startle response, sleep disturbances, and problems with concentration. The Veteran reported that he continues to live with his wife and is close to his sister. A September 2018 VA psychologist noted that the Veteran's PTSD causes him occupational and social impairment with reduced reliability and productivity. The VA psychologist noted the Veteran experienced symptoms such as anxiety, flattened affect, persistent and exaggerated negative beliefs or expectations of oneself, hypervigilance, exaggerated startle response, sleep disturbances, depressed mood, suspiciousness, mild memory loss, and problems with concentration. A July 2019 VA psychologist noted that the Veteran often has a feeling of detachment and experiences nightmarish memories. An August 2021 VA psychologist noted that the Veteran is employed and has supportive family and friends along with spiritual support. Overall, the Veteran has experienced symptoms such as sleep disturbances, problems with concentration, and an inability to establish and maintain effective relationships. These symptoms caused occupational and social impairment with deficiencies in most areas, approximating the symptoms and impairment required for a 70 percent rating under the general rating formula. Although the Veteran has not exhibited all of the criteria for a 70 percent rating under DC 9411, the use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. Further, the Veteran has also expressed suicidal ideation. See Bankhead, 29 Vet. App. at 20 (the language of the general rating formula indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas). Therefore, an initial 70 percent rating is warranted for the entire appeal period. In Swain v. McDonald, 27 Vet. App. 219, 224 (2015), the Court held that an "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested." The Court also held that the Board erred when it set an effective date based on the speech recognition scores required by 38 C.F.R. § 4.85(a), rather than 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o), which tie an effective date to the earliest date a disability is ascertainable. Id. Based on the above, the Board finds that the Veteran did not suddenly get worse on August 31, 2018. The Veteran's PTSD symptomatology has remained consistent throughout the appeal period and the evidence is approximately evenly balanced as to whether his symptoms more nearly approximated the criteria for a 70 percent rating throughout the appeal period. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 70 percent rating from July 15, 2016 is warranted. As the degree of disability has remained uniform throughout the appeal period, a staged rating is not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's symptoms and overall impairment caused by his service-connected PTSD do not more nearly approximate total social and occupational impairment required for a 100 percent rating. The evidence of record does not demonstrate that the Veteran experienced symptoms such as gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting himself 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. The Veteran has been married for several decades, has good relationships with his siblings, children, and grandchildren as well as with friends. Further, the Veteran is currently employed, and his PTSD does not prevent him from maintaining occupational relationships. Thus, the evidence of record reflects that the impairment caused by the Veteran's PTSD symptoms do not more nearly approximate the total social and occupational impairment required for a 100 percent rating under the general rating formula. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an initial 100 percent rating for PTSD is warranted. Rather, the evidence persuasively weighs against an initial rating greater than 70 percent. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). REASONS FOR REMAND Entitlement to service connection for a heart disability, to include IHD and atrial fibrillation, is remanded. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA laws and regulations also provide that, if a Veteran was exposed to herbicide agents (Agent Orange) during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who served in Vietnam is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). IHD is among the listed disabilities under 38 U.S.C. § 3.309(e). In this case the Veteran has confirmed service in the Republic of Vietnam and the presumption afforded under these provisions can provide a basis for a grant of service connection. A September 2018 VA physician evaluated the Veteran and determined there was no evidence of IHD or any heart condition. The VA physician opined that there is no diagnosis of a heart condition that is at least likely related to IHD and no further work up or diagnostic study would indicate as such. Following this VA examination, a November 2019 private physician diagnosed the Veteran with mild to moderate ischemia involving the anteroapical region with evidence for an inferoapical infarct with mild per-infarct ischemia. Also, an October 2019 VA physician diagnosed the Veteran with atrial fibrillation. 38 C.F.R. § 4.104, Diagnostic Code 7010, Note 1, indicates that atrial fibrillation is a type of supraventricular tachycardia and thus a disability for which compensation may be granted. See Wait v. Wilkie, 33 Vet. App. 8 (2020) (discussing the relevance of the Rating Schedular to the determination of whether the current disability element of a service connection claim has been satisfied). In Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) the Court held that a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. The Veteran originally filed a claim for IHD and the Board has broadened the Veteran's claim and considered all cardiac disabilities raised by the record, to include atrial fibrillation. Based on the reports of ongoing potential manifestations of IHD or other cardiovascular disability, the Board finds a VA examination is warranted. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination by a physician to determine whether the Veteran has IHD and to address the etiology of any non-IHD heart disorder, to include atrial fibrillation. Ensure the physician conducts all tests necessary to confirm or rule out the presence of IHD. If the physician is unable to conduct any required testing, such as an exercise stress test, electrocardiogram, echocardiogram, or x-ray, or concludes that such required testing is not necessary, he or she should clearly explain why that is so. The physician should address the November 2019 private treatment record which indicates the Veteran is diagnosed with mild to moderate ischemia involving the anteroapical region. For each diagnosed heart disorder other than IHD, including atrial fibrillation, request an opinion from an appropriate physician regarding the etiology and related symptoms. The physician must provide an opinion on whether it is at least as likely as not (a 50 percent probability or greater), that the Veteran's heart disorder, to include atrial fibrillation, is related to or had its onset in military service including in-service exposure to herbicide agents (Agent Orange). The physician is advised that the Veteran is competent to report symptoms and treatment and that his reports must be considered in formulating the requested opinion. The fact that atrial fibrillation is not on the list of diseases presumed service-connected in veterans exposed to herbicide agents should not be a basis for a negative opinion, as the Veteran may still establish such a relationship on a direct basis. The factors to be considered include the persuasiveness of medical studies, whether there are risk factors personal to the veteran that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.