Citation Nr: 21006101 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 20-10 481 DATE: February 3, 2021 ORDER Entitlement to an initial rating of 100 percent for posttraumatic stress disorder (PTSD) is granted from April 25, 2018. REMANDED Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss is remanded. Entitlement to service connection for any heart disorder, to include as secondary to PTSD and its prescribed medications, is remanded. Entitlement to service connection for a right-hand disorder, to account for pain, numbness, and weakness, is remanded. Entitlement to service connection for a left-hand disorder, to account for pain, numbness, and weakness, is remanded. FINDING OF FACT The Veteran’s PTSD has been manifested by total occupational and social impairment throughout the appeal period. CONCLUSION OF LAW The criteria for a 100 percent rating for PTSD are met from April 25, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1950 to December 1953, including service in the Korean War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified before the undersigned. These matters have been advanced on the docket pursuant to 38 C.F.R. § 20.902. The Board has recharacterized the Veteran’s service connection claims to ensure consideration of all diagnoses of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Initially the Board notes that the Veteran’s available Service Treatment Records (STRs) indicate the bulk of his records from his entry onto active duty until he was transferred from Korea to Japan were lost while he was still on active duty. See January 1953 STR. The Board is mindful that, in cases where service records are unavailable, the VA has a heightened obligation to assist the Veteran in the development of his claims and consider carefully the benefit of the doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). 1. Entitlement to an initial rating of 100 percent for PTSD is granted. The Veteran asserts that he is entitled to an initial rating greater than 50 percent rating for his PTSD disorder, effective from April 25, 2018 (the date of service connection). See January 2019 Notice of Disagreement (NOD). The Board agrees. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Currently, the Veteran’s psychiatric disorder is rated at 50 percent from April 25, 2018, the date of service connection, pursuant to 38 C.F.R. § 4.130, DC 9411, which is under the General Rating Formula for Mental Disorders. Under DC 9411, a 70 percent rating is assigned when 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. 38 C.F.R. § 4.130, DC 9411. A 100 percent rating is warranted if 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. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Upon review of the totality of the record, the Board finds that a higher rating of 100 percent is warranted for the Veteran’s PTSD throughout the appeal period, or from April 25, 2018, as the evidence is demonstrative of total occupational and social impairment, due to such symptoms as grossly inappropriate behavior, persistent danger of hurting self or others, and disorientation to time and place. Throughout the appeal period, the Veteran submitted to one VA examination in October 2018. The VA examiner, a psychologist, diagnosed PTSD with unspecified neurocognitive disorder and opined that the neurocognitive disorder was less likely than not due to the Veteran’s active duty but rather related to more recent medical conditions, possibly vascular dementia or normal pressure hydrencephalus (NPR). The examiner differentiated the symptoms of these two disorders and opined that while she could not differentiate the level of impairment caused by each disorder, that the PTSD was causing occupational and social impairment with reduced reliability and productivity. The Board notes the VA examiner’s opinion is inconsistent, in that she first stated she could not differentiate between the service-connected PTSD and the non service-connected neurocognitive disorder, and then subsequently attributed a reduction in reliability to the Veteran’s PTSD and the bulk of the occupational and social impairment to the Veteran’s neurocognitive disorder that when combined resulted in total social and occupational impairment. Critically, in January 2020, a VA Geriatric Attending Medical Doctor and Geriatric Psychiatrist examined the Veteran and concluded that the Veteran’s predominant issues were his mental health issues. The psychiatrist went on to note that while the Veteran’s presentation was consistent with dementia, that perhaps this was not a new or worsening neurocognitive disorder but rather a “long-standing cognitive disorder in combination with his serious mental [health] illness,” noted to be PTSD with depression and bipolar disorder. Additionally, a December 2001 VA examination report conducted in conjunction with an incompetency proceeding indicates the Veteran was experiencing memory problems, both immediate and remote, had difficulty with concentration (could not spell “world” backwards or complete serial 7s), and was angry and irritable throughout the examination and expressed that he did not understand why he was being examined. The December 2001 examiner went on to note the Veteran’s judgement and insight were impaired and that the Veteran frequently gave money away to strangers. The December 2001 examiner diagnosed intermittent explosive disorder and recommended the Veteran be adjudicated incompetent. Critically, the Veteran was not diagnosed with normal pressure hydrocephalus until January 2015 or vascular dementia until December 2010. Accordingly, as the October 2018 examiner opined the Veteran’s cognitive issues were “possibly” due to recent medical issues and did not address whether the Veteran’s PTSD was aggravating the diagnosed neurocognitive disorder, and given the above-cited evidence of record, the Board finds that any social and occupational impairment should be attributed wholly to his service-connected mental health disorder, or PTSD. 38 C.F.R. §§ 3.102, 4.3. Regarding social impairment, the October 2018 VA examiner attributed intrusive memories and dreams, hypervigilance, avoidance behaviors, agitation, mood lability, anger and irritability, negative mood and cognition, and chronic sleep impairment to the Veteran’s PTSD. In addition to these symptoms, the October 2018 examiner also noted the Veteran was experiencing depressed mood, anxiety, panic attacks occurring weekly or less often, disturbances of motivation and mood, difficulty in establishing and maintaining relationships, difficulty in adapting to stressful circumstances, and chronic sleep impairment. Throughout the appeal period the Veteran has expressed a willingness to harm himself or others whenever he becomes angry. See December 2020 Board Hearing Transcript at 44; February 2018, August 2018, November 2018 VA treatment records. The Court of Appeals for Veterans Claims (Court) has held that...the language of the regulation (General Rating Formula for Mental Disorders) 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. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). A November 2018 VA treatment provider found that the Veteran was having increasing difficulty with agitation and anxiety consistent with reports of the Veteran becoming angry and frustrated while watching television. The Veteran’s spouse reported the Veteran frequently becomes aggressive and threatens to hurt people. See November 2018 VA treatment records. Indeed, VA treatment records document the Veteran has physically assaulted both his wife and daughter in the past. See December 2004 VA treatment records. While the December 2004 incident is well outside the appeal period, it provides credibility to the continued reports of the Veteran’s impaired impulse control, unprovoked irritability with periods of violence, and being a peristent danger to others. In January 2018, the Veteran was noted by a VA social worker to be depressed most days (near constant depression). See also December 2020 Board Hearing Transcript at 11. The Veteran consistently reports experiencing nightmares regarding his service in Korea and his wife reports that he frequently yells in his sleep during these nightmares. See August 2018 VA treatment records, December 2020 Board Hearing Transcript at 7. The Veteran’s wife reported at a VA mental health visit in November 2018 that she was recently contacted by a bus driver who let her know that her husband was lost and needed assistance in getting home. The Veteran was reported to have left his house in an attempt to hitchhike in September 2018 at nearly 87 years of age further demonstrating that he is a persistent danger to himself. See September 2018 VA treatment records. The Veteran’s daughter also reports the Veteran displays grossly inappropriate behavior, specifically, that he will throw cups of coffee on the floor in restaurants and start yelling at the waitress if he believes the coffee is cold or at other times has witnessed him become aggressive with law enforcement. See December 2020 Board Hearing Transcript at 20. Regarding occupational impairment, the Veteran’s daughter reported to the October 2018 VA examiner that the Veteran was a “panhandler” most of her life and that she grew up living in a car. The Veteran reported he was never able to hold down a job and only worked odd jobs since his discharge from active duty. See October 2018 VA examination report. Consistent with these reports, the Veteran informed VA treatment providers that he had difficulty keeping a job after Korea and that he often lost jobs due to his anger problems which have been medically attributed to his PTSD. See September 2018 VA treatment records. October 2018 VA examination report. The Veteran’s daughter reported that they moved at least 20 times during her school aged years. Id. Notably, the October 2018 VA examiner continued to agree with the December 2001 VA examiner regarding the Veteran’s inability to manage his own financial affairs. After considering of this evidence and resolving all reasonable doubt in his favor, the Board finds that the Veteran is totally occupationally impaired due to his PTSD and a 100 percent rating is warranted, effective April 25, 2018. REASONS FOR REMAND 2. Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss is remanded. The Veteran asserts that his bilateral hearing loss, currently rated as 20 percent disabling, warrants a higher rating. See January 2019 NOD. At the December 2020 Board Hearing, the Veteran, his wife, and his daughter all testified that his hearing had greatly degraded since his last examination in October 2018. As such, an updated VA examination is needed as the October 2018 VA examination may no longer be reflective of the Veteran’s current hearing loss disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997). 3. Entitlement to service connection for any heart disorder, to include as secondary to PTSD and its prescribed medications, is remanded. The Veteran asserts that his current heart disorder either had its onset during active duty or is otherwise related to his active duty service, to include as secondary to his service-connected PTSD and the medication prescribed to treat the same. See December 2020 Board Hearing Transcript at 2. The Veteran complained of chest pain while on active duty. See January 1953 STRs. VA treatment records reflect that the Veteran complained that his PTSD results in frequent outbursts of anger followed by chest pain for which he is prescribed nitroglycerin. See February 2001 VA Treatment Records. August 2004 VA treatment records indicate the Veteran underwent a coronary artery bypass graft (CABG) at a private hospital and subsequently was diagnosed with coronary artery disease. See August 2004, April 2009 VA treatment records. As the Veteran is service-connected for PTSD, has a current diagnosis of coronary artery disease status-post CABG and has provided evidence of a link between these two disorders, the Board finds that the low threshold of the McLendon standard has been met and a VA examination and opinion must be obtained on remand. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 4. Entitlement to service connection for a right hand disorder, to account for pain, numbness, and weakness, is remanded. 5. Entitlement to service connection for a left hand disorder, to account for pain, numbness, and weakness, is remanded. The Veteran asserts that his current bilateral hand disorders, characterized by pain, numbness, loss of strength, and burning, are proximately due to his service in Korea as an anti-aircraft gunner, to include as the residuals of a cold injury. See December 2020 Board Hearing Transcript at 26, 31. During the appeal period, the Veteran has been diagnosed with carpal tunnel syndrome and degenerative arthritis. See January 1999, April 2000, December 2015, January 2019 VA treatment records. At his December 2020 Board Hearing, the Veteran testified that while serving in Korea, he was exposed to freezing temperatures as a night watchman and anti-aircraft gunner resulting in cold injuries to his hands and additionally reported gripping and firing heavy-caliber anti-aircraft guns. As noted above, the Veteran’s STRs from his time in Korea were noted to have been lost. See January 1953 STRs. Accordingly, the Board concedes that the Veteran suffered a cold injury to his hands while serving in Korea and additionally that as an anti-aircraft gunner in Korea, his hands would have been repeatedly exposed to recoil trauma. 38 U.S.C. § 1154(a). Thus, a VA examination and opinion are required on remand. See McLendon, supra. Finally, with respect to all issues remanded herein, any outstanding treatment records should be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records, to include records from Mayo Hospital. 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected bilateral hearing loss. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. All findings should be reported in detail, including any functional effects associated with the Veteran’s bilateral hearing loss. 4. Then schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed heart disorder. The entire claims file should be made available to and reviewed by the examiner. All necessary testing should be conducted, and all findings reported in detail. The examiner should then address the following: (a.) Identify all heart disorders present since April 2018 to include coronary artery disease status-post CABG. (b.) For each disorder diagnosed in part (a.), the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current heart disorder: 1. had its onset during service or otherwise was due to an event or incident of the Veteran’s service, to include his January 1953 complaints of chest pain; or 2. is proximately due to his service-connected PTSD, to include as a result of the cumulative impact of psychiatric symptoms such as stress or anger, to include as a result of psychotropic medications prescribed for the same; or 3. has been aggravated (worsened beyond natural progression) by service-connected PTSD; to include as a result of the cumulative impact of psychiatric symptoms such as stress or anger, to include as a result of psychotropic medications prescribed for the same. (c.) In answering these questions, the examiner must address the following: a. February 2001 VA treatment record that notes the Veteran experiences chest pain as a result of his PTSD symptoms; b. the December 2004 VA treatment record noting that the Veteran’s prescription for lithium to treat PTSD was ceased for cardiac reasons; c. the December 2020 testimony that the Veteran’s PTSD symptoms increase his heart rate requiring administration of nitroglycerin. Please also note that in addressing secondary service connection, the primary disability (PTSD, sleep apnea) need not be diagnosed at the time the secondary disability (here, CAD) is incurred, and reliance on this fact in support of a negative opinion will render it inadequate. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles. 5. Then schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed hand disorder, to include carpal tunnel syndrome, arthritis, and any cold injury residuals. The entire claims file should be made available to and reviewed by the examiner. All necessary testing should be conducted, and all findings reported in detail. The examiner should then address the following: After reviewing the Veteran’s claims file, please address the following: (a.) Identify any disability manifested by cold sensitivity (pain, burning, weakness, numbness) in the Veteran’s hands, to include any functional impairment. If you find that the Veteran does not possess any such disability, please discuss the December 2018 VA treatment record noting twitching/tremor-like movements of the left thumb. (b.) Identify all other hand disorders manifested by pain, numbness, loss of strength, and a burning sensation, to include degenerative arthritis and carpal tunnel syndrome. See January 1999, April 2000, December 2015, January 2019 VA treatment records. (c.) For each disability or functional impairment so identified, including arthritis of the hands and carpal tunnel syndrome, please opine whether it is at least as likely as not (50 percent or higher probability) that such disability had its onset in service or is otherwise the result of service, to include as a result of: 1. the cumulative impact of serving as an anti-aircraft gunner throughout his active duty service in Korea; or 2. the Veteran’s conceded in-service exposure to extreme cold temperatures while serving in Korea. The examiner is advised that this cold exposure is to be considered as fact for the purpose of rendering this opinion, and not doing so will render the opinion inadequate. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles. If unable to opine without resorting to speculation, please provide a basis for reaching this conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.