Citation Nr: A21020511 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 210309-146850 DATE: December 27, 2021 ORDER Entitlement to a rating in excess of 30 percent for other specified trauma and stressor related disorder is denied. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide exposure is remanded. FINDING OF FACT The objective medical evidence does not show that the severity, frequency and duration of the Veteran's other specified trauma and stressor related more closely approximates occupational and social impairment with reduced reliability and productivity; occupational and social impairment, with deficiencies in most areas; or total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for other specified trauma and stressor related have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9410. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2020 Appeals Modernization Act (AMA) rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed the June 2020 decision by submitting a notice of disagreement (NOD) in March 2021. He selected a Board appeal with evidence submission reviewed by a Veterans Law Judge, providing him an additional 90 days to submit evidence and reflecting that the Veteran does not want a Board hearing. The Board will consider the evidence of record at the time of the June 2020 decision, and the evidence submitted within 90 days of the Veteran's March 2021 NOD. To the extent that the Veteran has also appealed other rating decisions these appeals were made on a separate NOD Form 10182 and will be addressed in a separate decision issued by the Board. Entitlement to a rating in excess of 30 percent for other specified trauma and stressor related Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of the assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (i.e., "staged ratings"). Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran's other specified trauma and stressor related disorder has been assigned an evaluation of 30 percent, effective September 20, 2019, pursuant to 38 C.F.R. § 4.130, DC 9410. The rating criteria pertaining to the Veteran's appeal is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 30 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9410. A 50 percent evaluation is warranted where the disorder is manifested by 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 for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where the disorder is manifested by 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 that is 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 an inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating, then that rating will be assigned. Mauerhan, 16 Vet. App. at 443. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall 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). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The Veteran's other specified trauma and stressor related disorder has been assigned an evaluation of 30 percent, effective September 20, 2019. After reviewing the evidence of record under the laws and regulations set forth above, the Veteran's psychiatric disorder does not show that the severity, frequency and duration of the Veteran's other specified trauma and stressor related disorder more closely approximates occupational and social impairment, with reduced reliability and productivity; occupational and social impairment, with deficiencies in most areas; or total occupational and social impairment. Turning to the record, the Veteran's VA treatment records for the period on appeal reveal that he consistently denied depression and suicidal thoughts and there were multiple negative depression screens. The Veteran's VA psychiatric evaluations show that he was cooperative, had normal mood and normal affect, no anxiety or depression. The Veteran was afforded a VA examination in May 2020. The examiner found that the Veteran's symptoms do not meet the diagnostic criteria for posttraumatic stress disorder (PTSD) and provided a diagnosis of other specified trauma and stressor related disorder. The examiner summarized the Veteran's level of occupational and social impairment as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally satisfactorily, with normal routine behavior, self-care and conversation. At the May 2020 VA examination, the Veteran reported being married, having a supportive family and close friends. He retired in 2006 and enjoys going fishing, going to church, and traveling. The Veteran reported that he was not taking medications for mood or sleep at that time, and he denied suicidal or homicidal intent or problems with physical violence. The examiner listed the Veteran's psychiatric symptoms as depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. Regarding behavioral observations, the Veteran's affect was appropriate, mood euthymic, logical and tight thinking, good judgment and insight. The Veteran reported a specific fear of flying due to in-service traumatic events. The Board notes that the findings of this examination support a 30 percent disability evaluation for the Veteran's psychiatric disorder. The Veteran submitted an independent psychiatric evaluation in March 2021. At the March 2021 evaluation, the Veteran reported survivor's guilt on a consistent basis, his arousal symptoms have overall decreased, but he noted regular aggravations in his hypervigilance for potential safety concerns, intrusive memories, and he avoids flying. The Veteran reported decreased sleep, irritability, and decreased concentration that were, in part, due to his in-service traumatic events and also, in part, due to more recent development of physical pain. He reported hypervigilance, a reduced interest in previously enjoyed activities (such as camping and fishing), and a decrease in energy, appetite, and sex drive. He denied suicidal thoughts, intentions, or plans. The Veteran reported he never took psychotropic medications. Regarding behavioral observations, the Veteran appeared alert, reported mood was stressed with consistent affect. There was a negligible degree of conceptual disorganization evident, his thought content was characterized by no significant preoccupations. The Veteran denied hallucinations, attitude was described as discouraged, insight and judgment appeared good. Results of the March 2021 psychological testing revealed the Veteran reported minimal levels of depression and mild levels of anxiety. The examiner provided a diagnosis of PTSD, aggravated by pain and resulting in incapacitating symptoms which limit his ability to engage in gainful employment. The March 2021 psychologist provided a PTSD disability benefits questionnaire (DBQ), describing the Veteran's level of occupational and social impairment as impairment with reduced reliability and productivity. The psychologist noted the Veteran's psychiatric symptoms as anxiety, chronic sleep impairment, difficulty in understanding complex commands, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The Board observes that the March 2021 private psychologist provided a description of the Veteran's occupational and social impairment that indicates entitlement to a 50 percent disability rating for his psychiatric disorder. However, that finding is not supported by the private medical evaluation or the Veteran's report of symptoms. Specifically, at the private evaluation, the Veteran reported that his arousal symptoms have decreased overall, he did not report memory difficulties, panic attacks, and psychological testing revealed minimal depression and mild levels of anxiety. While the psychologist provided a PTSD diagnosis, he also noted that the diagnosis was aggravated by pain, especially in the past year. The Board finds that the March 2021 private psychological evaluation further supports a 30 percent disability rating for the Veteran's psychiatric disorder. The Board also reviewed and carefully considered the Veteran's lay statements asserting that the severity of his service-connected psychiatric disorder warrants a higher disability rating. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to the Veteran's psychiatric disorder symptoms as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, the statements provided do not contemplate a higher rating based solely on the Veteran's psychiatric disorder as they provide observations of the difficulties of all of the Veteran's disabilities, both service-connected and nonservice-connected. Specifically, the Veteran reported that his psychological symptoms are aggravated by his physical pain, which is supported by the March 2021 private evaluation report. The Board acknowledges the Veteran's attorney's contention that the May 2020 examination is inadequate. The attorney submitted a March 2021 brief noting that the Veteran's psychiatric disorder should be rated 70 percent or more. The attorney asserts that the May 2020 examination is inadequate because the examiner did not diagnose PTSD and relied on the lack of criterion E symptoms, although the Veteran has sleep disturbances as required by PTSD criterion E. To that end, the Board finds that the May 2020 examiner provided a sufficient rationale for finding that the Veteran's sleep disturbances did not satisfy criterion E for a diagnosis of PTSD. Specifically, the May 2020 examiner opined that the Veteran did not report sleep problems suggestive of PTSD, he reported sleep is restless and not feeling refreshed; the Veteran's sleep disturbances are overlapping symptoms clearly attributable to other things. The attorney also notes the March 2021 private evaluation provided a PTSD diagnosis and supports a higher rating. However, as discussed above, the Board finds the private evaluation does not provide a basis for granting an increased rating for the Veteran's psychiatric disorder. For these reasons and based on the objective medical evidence, the Board finds that the severity, frequency and duration of the Veteran's psychiatric disorder more closely approximates occupational and social impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to his symptoms. In denying the claim, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for hypertension, to include as due to herbicide exposure is remanded. The Veteran is seeking entitlement to service connection for hypertension, to include as due to herbicide exposure. The Veteran contends that his current hypertension disability is due to in-service herbicide exposure while he was in Thailand. The Board has found in a separate decision the Veteran exposed to herbicides. In the June 2020 rating decision, the AOJ provided the Favorable Findings that the Veteran has been diagnosed with hypertension and that the Veteran's claimed disability of hypertension is a chronic disease which may be presumptively linked to his military service. The Board is bound by these favorable findings. 38 C.F.R. § 3.104 (c). Thus, the remaining questions are whether the Veteran's current hypertension disability is related to his military service or in-service herbicide exposure. Although hypertension is not on the list of diseases and conditions presumptively associated with exposure to herbicide agents, direct causation based on herbicide exposure is still a possibility. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed Cir. 1994). The Board notes that the National Academy of Sciences (NAS) has found that there is "limited or suggestive evidence of an association between" hypertension and exposure to herbicide agents (such as Agent Orange) based on a recent statistical study. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308 (April 11, 2014); see also 38 U.S.C. § 1116(b). The category "limited or suggestive evidence of an association" means that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Id. A more recent study by NAS released on November 15, 2018, indicates that "[t]he latest in a series of congressionally mandated biennial reviews of the evidence of health problems that may be linked to exposure to Agent Orange and other herbicides used during the Vietnam War found sufficient evidence of an association for hypertension." Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2018, at 498, available at https://www.nap.edu/read/25137 (last visited December 22, 2021). The Board finds that the suggestive evidence of an association between hypertension and herbicide exposure is also sufficient to establish an "indication" that the current disability "may be related" to herbicide exposure during service, as contemplated by 38 U.S.C. § 5103A(d)(2)(B). VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; and (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Court of Appeals for Veterans Claims has described the threshold for finding a link between a current disability and service is low. McLendon, 20 Vet. App. at 83. The Veteran has not been afforded a VA examination for this disability. There is evidence of a current disability, presumption of in-service herbicide exposure, and an indication and lay statements of a nexus. However, to date, the Veteran has not been afforded a VA examination to determine if the Veteran has a current hypertension disability that is related to service. McLendon, 20 Vet. App. at 79; 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The Board finds that this is a pre-decisional error in the duty to assist, requiring Remand under current provisions. A remand is necessary to provide the Veteran with a VA examination and an opinion discussing the nature and etiology of the Veteran's hypertension. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an examiner of appropriate expertise to ascertain the nature and etiology of the Veteran's current hypertension disability. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following: (a.) Offer an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that any current hypertension disability had its onset in service or is otherwise related to active service, specifically to include herbicide agents in Thailand. The examiner is to address the National Academy of Science (NAS) 2018 publication "Veterans & Agent Orange: Update 2018," on whether the Veteran's hypertension was caused by his presumed exposure to herbicide agents, such as Agent Orange. (Continued on the next page) (b.) The examiner should provide a detailed rationale for the opinion, including a discussion of the evidence of record and medical principles which led to the conclusions reached. If an opinion cannot be provided without resort to speculation, the examiner should explain why it is not possible to provide an opinion. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.