Citation Nr: 21009630 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-06 065A DATE: February 23, 2021 ORDER Entitlement to an initial disability rating in excess of 50 percent from October 19, 2015 to January 9, 2020, and in excess of 70 percent from January 10, 2020 for unspecified trauma-related and stressor-related disorder, is denied. REMANDED Entitlement to a disability rating in excess of 30 percent for traumatic heart disease, myocardial fibrosis with RFB, and lingual of left upper heart lobe, is remanded. Entitlement to a disability rating in excess of 20 percent for residuals of lung injury is remanded. Entitlement to a disability rating in excess of 10 percent for scars, superficial is remanded. FINDINGS OF FACT 1. From October 19, 2015 to January 9, 2020, the Veteran’s disability picture manifested as occupational and social impairment with reduced reliability and productivity. 2. From January 10, 2020, to present, the Veteran’s disability picture manifested as occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 50 percent for unspecified trauma-related and stressor-related disorder, from October 19, 2015 to January 9, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9413. 2. The criteria for entitlement to an evaluation in excess of 70 percent for unspecified trauma-related and stressor-related disorder, from January 10, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to February 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2016 and June 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during an October 2019 hearing. A transcript of the hearing is associated with the Veteran’s claim file. The Veteran also appealed entitlement to a total disability rating based upon individual unemployability (TDIU). Following the January 2020 Board remand, in a September 2020 rating decision, the RO granted entitlement to a TDIU, effective October 19, 2015, the day the VA received his claims for increase for his service-connected lung and heart conditions and claim for service connection for a mental health condition. The grant of TDIU is also the date he met the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). As this grant of TDIU spans the entire period on appeal, this constituted a full grant of the benefits sought on appeal, and the issue of entitlement to TDIU is no longer on appeal. AB v. Brown, 6 Vet. App. 35 (1993). This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2). This matter was previously before the Board in January 2020, wherein the Board remanded for additional development. The matter has returned to the Board for adjudication. 1. Entitlement to an initial disability rating in excess of 50 percent and in excess of 70 percent from January 10, 2020 for unspecified trauma-related and stressor-related disorder The Veteran asserts that his mental health disability is more severe than the 50 percent that was awarded for his initial rating. By way of history, the Veteran was granted a 30 percent initial rating for his unspecified trauma-related and stressor-related disorder by way of a February 2016 rating decision. In a September 2020 rating decision, the RO increased the initial rating for the mental health disability from 30 percent to 50 percent and assigned a higher evaluation of 70 percent from January 10, 2020, the date of the VA examination that showed an increase was warranted. As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claims are still in controversy and on appeal. AB, 6 Vet. App. 35. 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. Under the General Rating Formula for Mental Disorders, a 30 percent evaluation is warranted where there is 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9413, General Rating Formula. A 50 percent rating is assigned for 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; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating 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. The maximum 100 percent rating is warranted where the disorder is manifested by 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 evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and a veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). 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. In addition, the rating agency will consider the extent of social impairment but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). Further, ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Turning to the evidence of record, the Veteran was examined by the VA in December 2015 and diagnosed with unspecified trauma-related and stressor-related disorder. The examiner found that the Veteran had 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 Veteran stated that he has two adult sons with whom he has a close relationship and has close relationships with his sisters and has close friends. The Veteran reported that he is currently a pastor of his own congregation. The Veteran endorsed that over the past couple of years around the Fourth of July, he has noticed an increase in sleep disturbance, nightmares, and depression, and reported being more watchful. He stated that his symptoms begin around June, when his neighbors start the fireworks, but he is alright once the explosions are gone. The Veteran had symptoms of depressed mood, anxiety, and chronic sleep impairment. He was alert, cooperative, and maintained good eye contact. His speech was of normal rate, rhythm, and volume. His mood was euthymic, and his affect was congruent with his mood. The Veteran denied suicidal ideation. A June 2017 VA treatment record indicates that the Veteran denied acute depression and he also denied suicidal and homicidal ideations. At the October 2019 Board hearing, the Veteran testified that his primary treatment was using his faith to try to control his mental health disorder. He stated that he gets angry, upset, and anxious particularly around fireworks and when helicopters fly overhead. He does not really have nightmares, but the trigger is during the months of June, July, August, and September when there seems to be most of the fireworks, and it is during this time that most of the things would happen. See October 2019 Board hearing transcript at pgs. 21-22. He also testified that he isolates himself sometimes and also has problems dealing with others on the road. The Veteran also stated that being a pastor helps him during these kinds of stresses because it helps him when he is talking to people, but he also testified that because of his position, he cannot really talk to anyone in his circle because it creates a problem for his faith. See October 2019 Board hearing transcript at pgs. 23-26. The Veteran was afforded a VA examination in January 2020. His diagnosis did not change from the previous examination. The VA examiner stated that the Veteran’s level of occupational and social impairment was best described as 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 Veteran reported positive relationships with his sons and six grandchildren but has some infrequent contact with some of his grandchildren because they live on the East coast. The Veteran continued to serve as a pastor and found his work with parishioners to be therapeutic for him. The Veteran stated, “I do great unless it’s around the Fourth of July.” He explained that he finds his symptoms become more pronounced around that time of year and described experiencing intrusive memories of explosions which are often prompted by hearing the whistle and explosions of fireworks. The Veteran reported that he has never taken psychotropic medication or participated in mental health treatment and considered his faith as his primary source of support. The Veteran also described prominent avoidance behaviors and noted that he finds it easier to not talk about things. He attributed his avoidance to a general sense that he did not want to discuss it and just wanted to forget about it. He also stated that he has a fairly limited social life and spends significant time alone, even though he does not do well by himself. He prefers to be around a few people, though not around crowds. He described having intermittent irritability often prompted by being around crowds. He also stated that he has become more tolerant and less irritable over time. The Veteran did not endorse any substance abuse currently or in the past. He endorsed the following symptoms: anxiety, chronic sleep impairment, difficulty adapting to stressful circumstances, including work or a work like setting, and obsessional rituals which interfere with routine activities. The VA examiner noted that the Veteran revealed an appropriate range of affect and his mood was congruent with topics discussed. He revealed logical and linear thought processes and he did not reveal any indication of psychosis. The Veteran explained that the sounds of fireworks increases intrusive memories of combat and, as a result, emotional distress and sleep problems. He stated that he generally does not like to be around crowds and finds crowded conditions to be anxiety provoking and as a result, maintains a fairly limited social life. He described his work as a minster as therapeutic and felt it was beneficial for him to concentrate on other people’s problem instead of his own. A VA treatment record from February 2020 notes that the Veteran denied suicidal ideations, homicidal ideations, and audiovisual hallucinations. After a review of the medical and lay evidence of record, an initial evaluation in excess of 50 percent is not warranted. The evidence suggests that the Veteran’s symptomatology has more nearly approximated occupational and social impairment associated with a 50 percent disability rating for the period from October 19, 2015 to January 9, 2020. As noted, a 50 percent rating is assigned for 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; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Overall, the evidence of record shows the Veteran's symptoms were consistent in type and severity during this time. The Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. The Board also finds that for this time period, neither the lay nor the medical evidence of record more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 70 percent disability evaluation, nor does it demonstrate deficiencies in most areas. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9413. Furthermore, there is no indication of suicidal ideation, obsessional rituals interfering routine activities, impaired speech, spatial disorientation, neglect of personal hygiene or appearance, or any other manifestations resulting in occupational and social impairment with deficiencies in most areas. The Veteran generally denied suicidal and homicidal ideations, did not have any obsessional rituals that interfered with routine activities, had clear and coherent speech, was not in a state of near-continuous panic or depression affecting the ability to function independently, did not have impaired impulse control, did not display spatial disorientation, was appropriately groomed, and did not have inability to establish and maintain effective relationships. Thus, the Board finds that for this period from October 19, 2015 to January 9, 2020, the Veteran does not have occupational and social impairment with deficiencies in most areas, and the greater weight of evidence demonstrates that the totality of the evidence is contemplated by the 50 percent rating assigned. From January 10, 2020 to present, the Veteran’s mental health condition has been assigned a 70 percent evaluation. The Veteran had anxiety, chronic sleep impairment, difficulty adapting to stressful circumstances, including work or a work like setting, and obsessional rituals which interfere with routine activities. Based upon a review of the record, at no point during the appellate period, has the Veteran met the requirements for a rating in excess of 70 percent for his psychiatric disorder. A rating higher than 70 percent requires total social and occupational impairment. The Veteran's symptomatology does not result in total occupational and social impairment. The Veteran's appearance and hygiene were mostly appropriate. He was fully oriented throughout the appeal period. The Veteran generally presented with normal speech, thoughts, insight, and judgment. Further, the record is devoid of evidence indicating persistent delusions or hallucinations, gross impairment in thought processes or communication, grossly inappropriate behavior, disorientation, and memory loss for names of close relatives, own occupation, or own name. In this regard, the Veteran consistently denied delusions and hallucinations as documented in various VA treatment records and VA examinations. The record also fails to demonstrate grossly inappropriate behavior, as the Veteran's behavior was often observed to be pleasant and cooperative by various treating physicians. The record also does not show persistent danger of the Veteran hurting himself or others and there is no other evidence of record which indicates there is a persistent danger of hurting himself or others. The Veteran did not have memory loss so severe such that the Veteran forgets his own name. The Veteran was generally able to perform activities of daily living. In sum, based on the evidence of record, the Board finds that a rating in excess of 50 percent rating from October 19, 2015 to January 9, 2020, is denied. A rating in excess of 70 percent from January 10, 2020, is denied. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to a disability rating in excess of 30 percent for traumatic heart disease, myocardial fibrosis with RFB, and lingual of left upper heart lobe The Veteran is service connected for traumatic heart disease, myocardial fibrosis with RFB, and lingual of left upper heart lobe and seeks a higher evaluation than the currently assigned 30 percent evaluation. In December 2015, the Veteran was afforded a VA examination. In addition to his service-connected heart conditions, the Veteran was also diagnosed with atrial fibrillation. The VA examiner indicated that the etiology of the atrial fibrillation was unknown and did not provide any further rationale. The evidence is unclear whether the Veteran’s atrial fibrillation is related to his service-connected heart condition. On remand, the Board finds that an addendum medical opinion is necessary to determine the relationship of the Veteran’s atrial fibrillation to his service-connected heart condition. 2. Entitlement to a disability rating in excess of 20 percent for residuals of lung injury The Veteran contends that he is entitled to a rating higher than 20 percent for his service-connected residuals of lung injury. The Veteran was most recently afforded a VA examination in January 2020. The VA examiner indicated that the Veteran was unable to tolerate the pulmonary function testing (PFT) upon examination. However, it was not clear whether the Veteran was unable to tolerate the PFT only on the day of the examination or whether the inability to perform the PFT was more permanent. In this regard, the Veteran should be afforded an opportunity to present for another VA examination to determine if he is able to perform a PFT or whether the inability to perform a PFT is permanent in nature. 3. Entitlement to a disability rating in excess of 10 percent for scars, superficial The Veteran contends that he is entitled to a higher disability rating than the currently assigned 10 percent for his scar located on his left chest. The Veteran was examined most recently by the VA in March 2020. On examination, the VA examiner confirmed that there was one painful scar on the chest. The examiner noted that the scar was not unstable, nor did it have frequent loss of covering of skin over the scar. The chest scar measured 22 x 0.5cm. However, there were additional scars found on the right upper extremity, left upper extremity, anterior trunk, and posterior trunk. The VA examiner did not indicate whether the additional scars were related to the Veteran’s gunshot wound or whether the scars were separate scars unrelated to the gunshot wound. As such, the Board finds that a remand is warranted to obtain clarification regarding the additional scars noted at the examination. The matters are REMANDED for the following action: 1. Obtain VA treatment records from October 2020 to present. All reasonable attempts should be made to obtain any identified records. 2. After completion of the above, obtain an addendum opinion from the VA provider who conducted the December 2015 VA examination for heart condition (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Is at least as likely as not that the Veteran's atrial fibrillation: a) had an onset in service; b) is otherwise related to service; or c) was caused or aggravated by, or a result of the service-connected traumatic heart disease, myocardial fibrosis with RFB, and lingual of left upper heart lobe. Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lung disability. The claims file must be made available to and reviewed by the examiner. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. All indicated tests must be performed, including an updated pulmonary function test (PFT), and all findings reported in detail. If the clinician determines that a PFT is not appropriate for the Veteran, the clinician must indicate whether the inability to perform a PFT is permanent in nature or whether it may be performed in the future. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. 4. Obtain an addendum opinion from the VA provider who conducted the March 2020 VA examination for scars (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Is at least as likely as not that the Veteran's additional scars of the right upper extremity, left upper extremity, anterior trunk, and posterior trunk: a) had an onset in service; b) is otherwise related to service; or c) was caused or aggravated by, or a result of the service-connected superficial scar of the left chest (status post gunshot wound)? Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.