Citation Nr: 21009853 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 10-00 469 DATE: February 23, 2021 ORDER Service connection for a heart disability is denied. Service connection for a lung disability is denied. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from September 28, 2007 to December 4, 2012 is denied. REMANDED Entitlement to an increased initial rating for degenerative joint disease of the right shoulder, currently rated as 20 percent disabling prior to December 20, 2010, 30 percent disabling from December 20, 2010 to May 18, 2011, 100 percent disabling from May 18, 2011 to July 1, 2012, and 30 percent disabling from July 1, 2012, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has had a heart disorder at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against a finding that a lung disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a lung disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1969 to March 1971 and from September 1974 to July 1976. This case comes to the Board of Veterans’ Appeals (Board) from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Travel Board hearing in October 2012. A transcript of the hearing is of record. As noted in prior Board decision, the Veterans Law Judge who presided over the October 2012 hearing is no longer available to participate in this appeal. The Veteran was offered an opportunity to appear at a new hearing, but has declined this opportunity. This case was remanded for additional development in April 2013, August 2015, and most recently, in April 2017. Subsequently, in a March 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s PTSD to 70 percent disabling, effective September 28, 2007 and increased the rating for the Veteran’s right shoulder disability to 20 percent disabling from September 28, 2007 to December 19, 2010. The rating decision also granted service connection for diabetic nephropathy and bilateral lower extremity diabetic neuropathy and assigned ratings for those disabilities. Service connection for a scar associated with the Veteran’s right shoulder condition was also granted and assigned a noncompensable rating. Finally, the RO awarded a TDIU effective September 28, 2007. With respect to the separate compensable ratings assigned for diabetic nephropathy diabetic neuropathy associated with the Veteran’s service-connected diabetes, the Veteran has not disagreed with the ratings or the effective dates assigned for those disabilities and therefore, they are not in appellate status. Regarding the increased rating of 70 percent assigned for PTSD, the Board notes that in October 2016 Correspondence, the Veteran’s attorney indicated that the Veteran was seeking a 100 percent rating for his PTSD as of September 28, 2007 and a 70 percent rating as of December 4, 2012. Therefore, as the assignment of a 70 percent rating has satisfied at least one portion of the appeal as limited by the Veteran’s attorney, i.e., since December 4, 2012, the only question before the Board is whether the Veteran is entitled to a rating in excess of 70 percent for the period from September 28, 2007 to December 4, 2012. The Board adds that in an April 2017 Remand, the Board requested that the Veteran submit, or provide a release for Vet Center records dated from 2007. The AOJ sent letters to the Veteran in September 2017, October 2019, and May 2020, requesting that the Veteran submit a release or submit the records himself. Neither the Veteran nor his attorney ever responded nor submitted a release for those records. In an August 2020 rating decision, the RO granted service connection for hypertension and rated the disability together with the already service-connected diabetic nephropathy pursuant to 38 C.F.R. § 4.14. As such is a full grant of the benefits sought on appeal with respect to the issue of service connection for hypertension, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Finally, as TDIU has been made effective September 28, 2007, the earliest date of service connection for any of the Veteran’s service-connected disabilities, no earlier consideration of TDIU is possible and need not be considered further. Service Connection The Veteran contends that service connection is warranted for heart and lung conditions. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 1. Heart Disability The Veteran originally contended that he had a heart condition secondary to his service-connected diabetes. Alternatively, he has contended that he has a heart condition related to service. The Board concludes that the Veteran does not have any current heart conditions and has not had any at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, the evidence of record does not show that the Veteran has experienced any manifestations of any heart condition productive of a functional impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this regard, it was noted at a February 2020 VA heart conditions examination that there was no functional impairment related to any heart condition, as there was no diagnosis of one. The pertinent medical evidence of record shows that at a May 2008 VA examination scheduled in connection with the Veteran’s claim for service connection, the only cardiac disability noted was hypertension. Reviewed at the May 2008 examination was an echocardiogram report from February 2008, which showed “mild concentric left ventricular hypertrophy.” The right and left atria were within normal limits. The examiner indicated that the Veteran’s stress test and echocardiogram were within normal limits. Despite the findings from the May 2008 VA examination, the Board, in an April 2013 Remand, requested that the Veteran undergo another VA examination to ascertain whether the Veteran had a current heart disorder, based on a post-May 2008 VA examination EKG which was abnormal. Accordingly, the Veteran underwent an additional VA heart conditions examination in December 2014. The examiner indicated that there were no heart diagnoses, noting that the Veteran had undergone several stress tests which had all been negative. The examiner referenced a February 2013 chest X-ray which showed a normal heart size with no evidence of failure, as well as a January 2011 echocardiogram which was negative. The Board again remanded the claim in April 2017, requesting another medical opinion addressing the February 2008 echocardiogram report indicating an enlarged left ventricle and the reports of a heart murmur indicated by the May 2008 VA examiner and a private physician in December 2012. The Board directed that a VA examiner address whether either the heart murmur or enlarged heart noted in 2008 had onset in service or was otherwise related to any in-service injury. Subsequently, the Veteran underwent a VA examination in February 2020. The VA did not diagnose any heart conditions. The Veteran told the examiner that he was told he had a heart murmur during service, and the examiner noted that there was a systolic murmur present on physical examination. The examiner noted that it appeared to be a benign murmur as it had remained unchanged for more than 20 years and multiple cardiac evaluations and stress tests had been normal. The Veteran denied a history of any cardiac condition, and the examiner stated that the Veteran’s cardiac size was normal as revealed by multiple chest X-rays and chest CT scans. The examiner added that heart murmurs were not, on their own, a form of heart disease as frequently they were benign and produced by circulatory turbulence which were denominated “hemic murmurs” to denote their benign origin. The AOJ obtained an addendum heart opinion in May 2020. The same examiner reviewed the relevant cardiac treatment records, reiterating that there were no findings in the Veteran of a pathological heart murmur. He added that innocent heart murmurs were harmless sounds made by the blood circulating normally through the heart’s chambers and valves or through blood vessels near the heart, noting that such murmurs could be common during infancy and childhood, disappearing by adulthood. In reviewing the pertinent medical evidence as outlined above, the Board concludes that there is simply no evidence that the Veteran suffers from any heart disorders, other than an innocent heart murmur which has been deemed not to be a disability. Specifically, the examiner who conducted the February 2020 and May 2020 VA examinations concluded that the Veteran had a benign heart murmur that had caused him no issues and had remain unchanged for decades. The Veteran himself indicated at a February 2020 examination that he did not have any cardiac issues. Each VA heart examination conducted during the course of this appeal has concluded that the Veteran does not have a heart disability. To the extent that the Board previously sought clarification on whether the Veteran’s “mild concentric left ventricular hypertrophy,” as noted on a February 2008 echocardiogram, is a disability that had onset in service, the Board observes that the February 2020 VA examiner indicated that subsequent chest X-rays and chest CAT scans had demonstrated a normal cardiac size. VA treatment records indicate that the Veteran takes a daily aspirin for his heart, but they do not show that the Veteran has any current heart conditions or is being treated for any cardiac issues. The Board recognizes the Veteran’s contentions at his October 2012 Board hearing that he has been told by his doctors that he has an enlarged heart and a heart murmur and that he occasionally experiences chest pains. The Board has also considered the Veteran’s statement at his February 2020 examination that he did not suffer from any cardiac conditions, taken together with the medical evidence indicating a normal cardiac size and an innocent heart murmur, without VA treatment for any active heart conditions, and must conclude that there is no current heart disability for which service connection can be granted. In sum, the Board finds that the preponderance of the evidence is against the claim of service connection for a heart disorder. There is no doubt to be resolved, and service connection must be denied. 2. Lung Disability The Veteran contends that his lung disability, specifically, benign pulmonary nodules, onset due to herbicide agent exposure in service. It is not in dispute that the Veteran has a diagnosis of benign pulmonary nodules, diagnosed in 2007. See December 2014 VA examination. Service treatment records do not show any complaints of, treatment for, or diagnoses of any lung conditions. His July 1976 separation clinical examination reflects a normal evaluation of the lungs and chest. However, the Veteran has conceded exposure to Agent Orange during his verified in-country service in the Republic of Vietnam from July 24, 1970 to February 24, 1971. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research. See, e.g., 68 Fed. Reg. 27,630-27,641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov.2 1999). However, even if the claimed disability is not on the list of diseases subject to presumptive service connection due to exposure to an herbicide agent, service connection may be established by proof that the claimed disability was actually caused by exposure to an herbicide agent during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). While some lung conditions are on the list of disease subject to presumptive service connection due to herbicide agent exposure, pulmonary nodules are not on that list. That stated, as noted above, direct service connection may still be available if the evidence establishes that such condition was caused by exposure. However, after consideration of all the evidence, the Board concludes that while the Veteran has a current lung disorder, namely, pulmonary nodules, and is presumed to have been exposed to Agent Orange, the preponderance of the evidence weighs against finding that the Veteran’s benign pulmonary nodules began during service or are otherwise related to an in-service injury, event, or disease, to include herbicide agent exposure. In so finding, the Board has considered the VA examination reports of record, the Veteran’s lay statements, and the pertinent medical evidence of record. In connection with his original claim for service connection, the Veteran underwent a VA examination in May 2008, at which time the examiner noted that pulmonary nodules had recently been found on a chest X-ray and chest CT scan. The examiner noted that there were no symptoms and the condition had been stable since onset, without any treatment necessary. The Board subsequently remanded the claim to determine whether the Veteran had any additional lung disorders, to include lung cancer. The Veteran underwent another VA examination in December 2014. The examiner again noted the diagnosis of pulmonary nodules of unknown etiology and concluded that the condition was less likely than not related to service, without any supporting rationale other than a blanket conclusion that there was no evidence to support any relationship. The Veteran underwent another VA examination in February 2020, and a VA examiner opined at that time that the Veteran’s pulmonary nodules were less likely than not related to service because benign, stable lung nodules were not a condition known to be caused by exposure to herbicides to include Agent Orange. Because the February 2020 VA examiner did not consider a direct relationship, an addendum medical opinion was obtained in May 2020. A VA examiner reviewed the relevant medical evidence, concluding that it was less likely than not that the Veteran’s pulmonary nodules were related to service. The examiner noted that benign pulmonary nodules appeared in about one out of every 200 chest X-rays and most chest CT scans, with at least 60 percent of pulmonary nodules seen on chest X-rays and 99 percent of nodules seen on chest CT scans turning out to benign. In a September 2020 addendum, the same VA examiner notably pointed to the causes of pulmonary nodules, which included fungal or bacterial infections, noncancerous processes such as sarcoidosis, or cancerous processes such as lung cancer or lymphoma. Other possibilities of etiology could include inflammatory processes, such as fungus, TB, nocardiosis, or septic emboli. The Board finds that the combined May 2020 and September 2020 VA opinions are the most probative, insofar as the examiner considered the Veteran’s service treatment and post-service medical records in finding that the Veteran’s benign pulmonary nodules were unrelated to service, specifically to Agent Orange exposure. Most notably, and what the Board specifically sought in its April 2017 Remand, the examiner, in his September 2020 opinion, pointed to the conditions that were most likely to cause pulmonary nodules. Exposure to herbicide agents, including Agent Orange, was not considered as a possible source of nodules. The Board adds that the Veteran has not submitted any medical evidence that is contrary to the findings of the VA examiners. For all these reasons, the Board concludes that the preponderance of the evidence is against the claim of service connection for a lung condition, specifically, benign pulmonary nodules. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 7105(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating – PTSD As noted above, the AOJ’s March 2020 award of a 70 percent rating for PTSD satisfied the Veteran’s appeal for a higher PTSD rating for all times after December 4, 2012. Indeed although the Veteran’s attorney requested a 70 percent rating from December 4, 2012 to the present, he also requested a 100 percent rating for all times prior to December 4, 2012. As such, the Board will adjudicate whether a rating higher than 70 percent can be awarded prior to December 4, 2012. The Board recognizes that after issuing its March 2020 rating decision, the AOJ did not subsequently issue a Supplemental Statement of the Case readjudicating the Veteran’s PTSD rating. Given that the March 2020 rating decision considered all the evidence of record up to that point, and all evidence added after that rating does not pertain to the period of review remaining on a appeal (i.e. prior to December 4, 2012), the Board finds that a remand solely to furnish a Supplemental Statement of the Case would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Indeed, the Board finds the error harmless, and will proceed with adjudication. Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings 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 Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). By way of relevant history, an August 2008 rating decision granted service connection for PTSD and assigned a 50 percent rating effective September 28, 2007. A March 2020 rating decision increased the rating to 70 percent disabling, effective September 28, 2007. In connection with his September 2007 claim for service connection, Dr. K.B. submitted a mental capacity assessment in February 2008, wherein he indicated that the Veteran’s PTSD caused heightened distractibility, irritability, decreased drive and energy, easy fatigue, and pronounced depressed and anxious moods with occasional suicidal thoughts (without acts of furtherance). He underwent a VA PTSD examination in June 2008. The Veteran said that he was divorced but had a good relationship with his two daughters and his grandchildren as well as with his father and sister. He said he had two friends who he saw on occasion. Hobbies noted included watching television and painting. He denied a history of suicide attempts. The Veteran was fully oriented with a cooperative attitude and clear speech. He demonstrated an anxious and depressed mood. He denied delusions, hallucinations, or inappropriate behavior. Memory was normal. The Veteran underwent an independent medical examination in November 2009, conducted by Dr. J.S. The Veteran told Dr. J.S. that he was irritable, anxious, and depressed and had poor sleep due to anxiety and nightmares. He said he got panicked by fireworks and loud noises. He explained that he had few relationships beyond his immediate family and that he rarely left the house, where he ate and watched television. He said that he overate to quell his anxiety. He said he struggled with attention and concentration and displayed impaired short-term memory on examination. At a June 2010 VA psychiatry session, the Veteran denied experiencing hallucinations or suicidal or homicidal ideation. He was alert and oriented, and calm, cooperative, and well-groomed. At his October 2012 Board hearing, the Veteran described nightmares, trouble sleeping, guilt, and intrusive thoughts. He said that he struggled with relationships and spent a lot of time by himself. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. 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. Then, the Board must 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, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent for the time period prior to December 4, 2012. Based on the foregoing facts as outlined above, the Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The foregoing evidence, to include VA and private treatment records, the June 2008 VA examination, and the Veteran’s statements, shows that the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating. In this regard, the Veteran has consistently described chronic sleep disturbance based on intrusive nightmares, hypervigilance, anger, irritability, depression, isolative tendencies, and thoughts of suicide, without any acts of furtherance, symptoms that are consistent with the criteria for a 70 percent rating. The Veteran never described or exhibited symptoms consistent with a 100 percent rating, insofar as he has consistently been noted to be oriented to person, time, and place, consistently denied hallucinations and delusions, and was always noted to exhibit appropriate behavior and demonstrate an ability to maintain his personal appearance. Further, while the Veteran is in receipt of a total disability rating based on individual unemployability as of September 28, 2007, the aforementioned evidence shows that the Veteran was not totally socially impaired. He described close relationships with his children, grandchildren, father, and sister and noted one or two close friends. In short, for the period from September 28, 2007 through December 4, 2012, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in total occupational and social impairment, which is required for the assignment of a 100 percent rating. The criteria for a 100 percent or higher rating are therefore not met, and the appeal must be denied. (Continued on Next Page) REASONS FOR REMAND Entitlement to an increased initial rating for degenerative joint disease of the right shoulder, currently rated as 20 percent disabling prior to December 20, 2010, 30 percent disabling from December 20, 2010 to May 18, 2011, 100 percent disabling from May 18, 2011 to July 1, 2012, and 30 percent disabling from July 1, 2012. In this case, additional evidence was added to the file by VA since the last statement of the case. Notably, the Veteran underwent a VA examination to assess the severity of his right shoulder condition in February 2020. While a rating decision was subsequently issued in March 2020, the rating decision only addressed one portion of the appeal period – from September 28, 2007 to December 19, 2010. However, as the Veteran has not been awarded the highest possible rating for his right shoulder condition for the entirety of the appeal period, the claim remains in appellate status. A.B. v. Brown, 6 Vet. App. 35 (1993). Thus, remand is required so that this new evidence can be reviewed in the first instance by the AOJ. The matter is REMANDED for the following action: Readjudicate the claim for an increased initial rating for the right shoulder condition for all portions of the appeal period with consideration of all the evidence entered into the record since the May 2015 Statement of the Case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.