Citation Nr: 21012247 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 04-00 686 DATE: March 3, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder and major depressive disorder is denied. Entitlement to a rating in excess of 30 percent for left clavicle fracture with residual deformity and muscle spasm in the neck and trapezius area is denied. FINDINGS OF FACT 1. The Veteran’s hypertension manifested to a compensable degree within one year of his separation from service. 2. The severity, frequency, and duration of psychiatric symptoms did not more closely approximate total occupational and social impairment. 3. The Veteran’s left clavicle disability is rated as 30 percent disabling, which is the maximum schedular rating permitted for limitation of motion of the arm of the minor extremity. The Veteran’s symptoms of muscle spasms, painful motion and limitation of motion, including limitation of rotation, are not exceptional and are contemplated by the Veteran’s current rating. CONCLUSIONS OF LAW 1. The Veteran’s hypertension, a chronic disease, was presumptively incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a disability rating in excess of 70 percent for posttraumatic stress disorder and major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130. 3. The criteria for a rating in excess of 30 percent for left clavicle fracture with residual deformity and muscle spasm in the neck and trapezius area have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5203-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1961 to April 1972. The Veteran’s claims have a long procedural history. More recently, the Board denied the increased ratings claims and remanded the hypertension claim in May 2015. The Veteran appealed the Board’s denials to the United States Court of Appeals for Veterans Claims (Court). In May 2016, the Court issued an order granting an April 2016 Joint Motion for Partial Remand (JMPR), remanding the claims to the Board for further action. The Board subsequently remanded the increased ratings claims in January 2017, and all three claims April 2020. 1. Entitlement to service connection for hypertension The record reflects three theories of entitlement: 1) hypertension is due to presumptive herbicide agent exposure; 2) hypertension is a chronic disease that manifest to a compensable degree within one year of separation of service; and 3) hypertension has been aggravated by service-connected disease or injury. Upon review of the evidence the Board finds the preponderance of the evidence of record is against finding the Veteran’s hypertension is due to presumptive herbicide agent exposure. However, when resolving doubt in favor of the Veteran, the Board finds the Veteran’s hypertension manifested to a compensable degree within one year of separation from service and is not due to an intercurrent cause. i. Applicable Law Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be established disability on the basis of a presumption that certain chronic diseases, to include hypertension, manifesting themselves to a certain degree within a certain time after service must have had their onset in service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a).  Generally, the disease must have manifested to a degree of 10 percent or more within one year of service.  38 C.F.R. § 3.307(a)(3).  Pertinent VA law and regulations provide that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). The diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Hypertension is expressly not a disease listed at 38 C.F.R. § 3.309(e). See 38 C.F.R. § 3.309(e), Note 2. The term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. ii. Evidence and Analysis A review of the legible portions of the Veteran’s service treatment records does not reveal treatment for or complaint of hypertension. The Veteran’s blood pressure reading during his February 1972 separation examination was 134/88mm. and was 110/66mm. at entrance. A report of medical history from the time of separation is not of record, but the separation examination report does not note hypertension or high blood pressure. The Veteran’s blood pressure was also normal during an August 1972 VA examination. When filing his claim in August 2003, the Veteran expressed his belief that his hypertension was related to Agent Orange exposure. He did not specify when his hypertension began, but that evidence should be in his record of this condition. In a July 2004 letter, the Veteran acknowledged and reported that “upon discharge from service my blood pressure was normal but high range and has been high since my departure I have taken blood pressure medication while in service and after to keep it in the normal range.” The Veteran has not since alleged having and being treated for hypertension in service. However, during his first VA hypertension examination, the Veteran reported that in 1972 he saw a civilian doctor for a routine physical examination as was diagnosed with hypertension and started on medication that day, as his blood pressure was in the 190s/160s. He further reported he has been on medication since. See August 2009 VA examination report, pages 3-4 (examiner wrote Veteran stated this occurred “in 1972 one year after separation from service” (emphasis added)). This reported visit appears to have been after the Veteran went to a VA examination in 1972. See May 2020 VA examination report (hypertension began in 1970s after August 1972 VA examination). The Veteran has also reported that he filed a claim for service connection for hypertension in 1972 at the service office in Louisville, Kentucky. See July 24, 2009 statement in support of claim; see also correspondence received August 21, 2009, page 6. Despite the discrepancies on the exact time of onset, the Board interprets the Veteran’s reports as contending that he was diagnosed with hypertension and prescribed medication to control it within one year of separation from service and has been on medication since. The Veteran is competent to make such a statement. The remaining question is whether the Veteran’s assertion is credible. When considering the Veteran’s reports and other evidence of record, the Board finds the evidence to be at least in equipoise with regard to the Veteran having hypertension to a compensable degree within one year of separation of service and continuously since. The Veteran’s claims file only contains a few pages of treatment records from the 1970s, and these limited records are focused on his ulcer disability from 1976 through 1978. See records received January 22, 1980 (from Dr. S’s practice). The legible portions of these records make no reference to hypertension, but two of the three blood pressure readings that were recorded are consistent with hypertension for VA purposes, i.e. diastolic pressure of 90mm. The next available treatment records are from 2001, which note the Veteran has a significant past medical history of hypertension. The records from Dr. S.’s practice were from 1976 at the earliest, but the Veteran reported seeing Dr. S. beginning in 1975 and seeking treatment from other clinicians from 1972 to 1975. See February 1980 VA ulcer examination; January 1980 authorization for release of records. However, treatment records from these other clinicians are not included in the Veteran’s claims file, nor are treatment records from Dr. S. from 1975 or after 1978. In 2003, the Veteran provided an authorization to release records from 1973 through 1994 from Dr. S., his former primary care physician, but Dr. S. did not respond to the Agency of Original Jurisdiction’s requests. The Veteran was also unable to obtain records from Dr. S., but did provide a 1995 quarterly benefits summary that shows medications the Veteran was taking, including for hypertension. The primary care physician the Veteran saw after Dr. S. noted he has been on a variety of hypertension medications, but didn’t specify when the Veteran’s hypertension began. See September 2003 letter from Dr. F. Additionally, the Veteran’s ex-spouse provided two letters that stated the Veteran was treated by Dr. S. for a myriad of ailments including hypertension. See correspondence received November 18, 2005 and May 24, 2006. The August 2009 VA hypertension examiner provided a negative nexus opinion regarding secondary service connection, in part due to the Veteran’s report of hypertension having its onset about 1972. Although there was conflicting evidence regarding the Veteran’s weight in 1972, the examiner confronted the Veteran with this, and the Veteran explained he lost weight due to ulcers. The examiner listed the Veteran’s onset of hypertension as decades prior to a 2002 prostate cancer diagnosis as a fact in the examination report, further suggesting the examiner found the Veteran credible. See August 2009 examination report, pages 5-6, fact 8. This supports the credibility of the Veteran’s historical reporting. The Veteran has alleged he filed a claim for hypertension in Louisville, Kentucky in 1972. The Board makes no judgement on this allegation. However, evidence in support of this allegation supports his pertinent allegation of having hypertension within a year of separation from service, as filing a claim at that time indicates the Veteran believed he had hypertension then. A review of the Veteran’s claims file reveals his initial claim, filed in May 1972, does not address hypertension and instead addresses his subsequently service-connected ulcer disability and clavicle (collarbone) disability. The Veteran pursued his initial claim, including appeal, for nearly two years, but there is no decision on hypertension or explicit claim for hypertension during this time. However, during a July 1973 phone call with a VA office in Detroit, Michigan, the Veteran reported he filed a compensation claim with the Regional Office in Louisville, Kentucky in April 1973 and wanted the claim to be processed in his new location. The Veteran did not specify what he was seeking compensation for. See July 23, 1973 report of contact. The Veteran’s electronic claims file currently has no documents with a receipt date in April 1973. The July 1973 report of an unspecified compensation claim being filed in April 1973 is relatively consistent with the Veteran’s reports of filing a claim for service connection for hypertension in 1972. Furthermore, during his 2009 VA hypertension examination, the Veteran reportedly stated he was diagnosed with hypertension and given medication during a routine physical examination “in 1972 one year after separation from service”. See August 2009 VA examination report, pages 3-4 (emphasis added). One year after separation from service was April 1973, the same month he reportedly filed a compensation claim. The Board reiterates that it makes no judgement on whether the Veteran actually filed a claim for service connection for hypertension in April 1973, but does find the July 1973 report of contact probative and weighs in favor of finding the Veteran’s subsequent reports of having hypertension treated with medication within one year of separation from service, and continuously since, to be credible. Additionally, the Board acknowledges the record contains medical opinions that the Veteran’s hypertension is attributable to the Veteran’s lifestyle, including his body weight. Such is not relevant. In light of the evidence above, the Board finds the evidence supports a finding of hypertension to a compensable degree within one year of separation from service. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Accordingly, the Board finds that service connection for hypertension on a presumptive basis is warranted. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. The Board notes there are medical opinions for and against the Veteran’s claim, but these focus on herbicide agent exposure and possible secondary service connection. The opinions in favor of the Veteran’s claim are specific to secondary service connection and are of little probative value as they do not contain rationale to support the opinions. Furthermore, the most recent VA opinion expressly addressed the National Academies of Science 2018 report that found epidemiologic evidence is sufficient to conclude that there is a positive association between herbicide agent exposure and hypertension. The May 2020 examiner considered this, but still opined “it is less than likely the [hypertension] is related to [Agent Orange] herbicide exposure”, noting “there is still insufficient medical and scientific evidence to determine a causative association between essential [hypertension] and Agent Orange herbicide exposure”. See May 2020 opinion report, page 3. There are no other medical opinions in support of this theory of entitlement and the examiner used the correct legal standard in expressing the opinion on page one of the opinion report. Therefore, the weight of evidence is against finding the Veteran’s hypertension is due to herbicide agent exposure. The herein grant of service connection for hypertension on a presumptive basis makes the secondary service connection theory moot. Rating 2. Evaluation of posttraumatic stress disorder and major depressive disorder The Veteran contends a rating in excess of 70 percent is warranted for service-connected posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). i. Appliable Law The Veteran’s psychiatric disorders are rated pursuant to 38 C.F.R. § 4.130. This provides the general rating formula for evaluating psychiatric disabilities other than eating disorders. 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). A 100 percent rating is the next highest and maximum rating after 70 percent. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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. ii. Evidence and Analysis 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. 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, at worst, 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 review of the record reveals the Veteran does not have, and has not had, total occupational and social impairment. Therefore, a 100 percent rating is not warranted. VA and private treatment records, the February 2004, February 2010, July 2011 and August 2020 VA examinations, and the Veteran’s lay statements show that the Veteran’s PTSD and MDD were manifested by different symptoms at different times, but included daily depression, anxiety, panic attacks (occasional and more than once a week), chronic sleep impairment including insomnia, impairment of short and long term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and suicidal ideation. Some of these symptoms are associated with a 70 percent rating, e.g., suicidal ideation and difficulty in adapting to stressful circumstances, but none of the Veteran’s symptoms are associated with a 100 percent rating. He also had symptoms that are not listed with a specific rating, such as intrusive thoughts, sadness, guilt, lack of motivation, anhedonia, and social withdrawal. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Although some of these symptoms were experienced daily, they are similar to depressed mood and disturbance of motivation and mood, which are contemplated by ratings of 30 and 50 percent, and are encompassed by the currently assigned 70 percent rating. The Board also finds the level of impairment caused by the Veteran’s symptoms at worst more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. The Board notes that the Veteran expressed suicidal ideation, which is similar to danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during VA examinations. Additionally, in multiple medical records, the Veteran has made statements inconsistent with total social and occupational impairment. For example, in October 2004 it was noted the Veteran’s support system included an adult son and girlfriend. In December 2006 the Veteran reporting expanding his lifestyle by continuing to go out. He continued to report having plutonic and intimate relationships and was also married during this time until his wife died in 2013. See, e.g., VA treatment records from August 26, 2009, November 8, 2010, April 19, 2012, December 1, 2014, December 30, 2015 and April 24, 2017. In his most recent VA examination for this claim, the Veteran reported that he rarely leaves his home and hasn’t seen his children or grandchildren since 2003, but that he does have a couple friends who check on him periodically. See August 2020 VA examination report. The Veteran attended VA mental disorders examinations in February 2004, February 2010, July 2011 and August 2020. None of these examiners opined the Veteran has total occupational and social impairment. Similarly, none of his treatment providers have indicated he has total occupational and social impairment. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent rating are not met and the appeal must be denied. 3. Entitlement to a rating in excess of 30 percent for left clavicle fracture with residual deformity and muscle spasm in the neck and trapezius area The Veteran contends that he is entitled to a rating in excess of 30 percent for left clavicle fracture with residual deformity and muscle spasm in the neck and trapezius (hereinafter clavicle disability). The Veteran’s clavicle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5203-5201; which means it is rated under Diagnostic Code 5201, pursuant to Diagnostic Code 5203. Diagnostic Code (DC) 5203 is for impairment of the clavicle or scapula. Under DC 5203, malunion of the clavicle or scapula warrants a 10 percent rating in both the major and minor extremity. Nonunion of the clavicle or scapula without loose movement warrants a 10 percent rating in both the major and minor extremity. Nonunion of the clavicle or scapula with loose movement warrants a 20 percent rating in both the major and minor extremity. Dislocation of the clavicle or scapula warrants a maximum 20 percent rating in both the major and minor extremity. Or rate on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a, Diagnostic Code 5203. The Veteran’s clavicle disability has been rated pursuant to this last portion of DC 5203, “on impairment of function of the contiguous joint”, in this case the acromioclavicular joint. Accordingly, it is rated under DC 5201 for limitation of motion of the arm. Under DC 5201, prior to February 7, 2021, limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. A recent update to the regulation, effective February 7, 2021, changed the language slightly to limitation of motion of the arm “flexion and/or abduction limited to 25° from side”. The Veteran is right-handed and has received the maximum rating of 30 percent throughout the relevant period, including one year prior to filing his claim for an increased rating in October 2007, even though there is evidence of improvement during the pendency of his claim. See, e.g., July 2013 VA examination. In April 2020, the Board remanded the Veteran’s claim for referral to the Director of Compensation so extraschedular consideration could be considered. An extraschedular rating was subsequently denied. See November 4, 2020 VA memo. The Board agrees and finds the preponderance of the evidence of the record is against finding an extraschedular rating is warranted, as the Veteran’s symptoms are contemplated by the ratings schedule in his current 30 percent rating under DC 5201. Extraschedular ratings are reserved for exceptional cases. See 38 C.F.R. § 3.321. In our April 2020 decision, the Board did not make any factual findings supporting referral for extraschedular consideration. See Smiddy v. Wilkie, 32 Vet. App. 350, 358 (2020). Instead, referral was made out of an abundance of caution in light of the Court’s prior Order granting a Joint Motion for Partial Remand. The Veteran has argued muscle spasms and limitation of motion of the arm, as represented by limitation of external rotation and internal rotation, warrant a separate or increased rating, to include an extraschedular rating. In essence, with regard to limitation of motion, the Veteran contends a separate or increased rating is warranted for limitation of motion of the shoulder in a separate plane, since Diagnostic Code 5201 only explicitly addresses limitation of flexion and abduction, while the Veteran also experiences limitation of rotation. Such an argument appears to be supported by 38 C.F.R. § 4.45, which lists “reduction of normal excursion of movements in different planes” as a factor of disability affecting joints. However, “diagnostic code 5201 only allows a single rating for limitation of motion, and that the plane in which the limitation of motion manifests itself is irrelevant.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013) (summarizing conclusion of the Court, before affirming the Court’s decision). The Federal Circuit in Yonek addressed 38 C.F.R. § 4.45, finding that this general directive does not require the VA to create separate diagnostic codes. Similarly, the Veteran’s muscle spasms are expected with painful motion, and are therefore contemplated by the Veteran’s current schedular rating. See 38 C.F.R. § 4.59 (muscle spasm will greatly assist in the identification of painful motion). Accordingly, the Veteran’s symptoms are not exceptional, as they are readily capable of evaluation under the relevant diagnostic criteria, and are accounted for by the Veteran’s current 30 percent rating. Therefore, an extraschedular rating is not warranted. See Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371, *11-12, (Dec. 30, 2020) (en banc). Similarly, as the Veteran’s symptoms are contemplated by DC 5201, rating by analogy to other diagnostic codes, such as 5301 through 5306, would be considered impermissible pyramiding. See 38 C.F.R. § 4.14. The language of Diagnostic Code 5203 expressly limits to rating on impairment of function of the “congruent joint”, i.e. the acromioclavicular (AC) joint in this case. Therefore, the Board finds diagnostic codes 5200 and 5202 are not for consideration, as they would require consideration of parts of the shoulder beyond the AC joint. However, to the extent a subsequent appellate body may find consideration of the remaining shoulder diagnostic codes is permissible, the Veteran does not contend, and the evidence does not show, the Veteran has ankylosis of his left shoulder (DC 5200) or other impairment of the humerus (DC 5202). See, e.g., November 2007 and September 2017 VA examinations. Accordingly, the preponderance of the evidence is against finding a separate rating is warranted.   The Board notes the Veteran is in receipt of a total disability rating for individual unemployability (TDIU), based in part on a medical opinion that the Veteran is unemployable due to his left clavicle disability. Therefore, the Board will not address TDIU. See May 2004 rating decision. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gregory T. Shannon, 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.