Citation Nr: 21014644 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 08-06 999 DATE: March 15, 2021 ORDER Service connection for a variously diagnosed respiratory disability is granted. More than a 70 percent rating for service-connected psychiatric disability is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 16, 2011 is granted. REMANDED Service connection for a foot disability is remanded. FINDINGS OF FACT 1. The evidence of record shows respiratory conditions that have been variously diagnosed as pulmonary eosinophilic granulomatosis (PEG), emphysema, pneumonia, bronchitis, bronchiectasis, asthma, sarcoidosis, atelectasis of the left lung, chronic obstructive pulmonary disease (COPD), bilateral interstitial fibrosis consistent with asbestosis, and constrictive bronchiolitis. 2. The Veteran has provided competent lay reports of breathing difficulties and persistent cough ever since discharge (in 1973) with private treatment in the 1970s and 1980s. He also separately alleged in a 2004 statement that his respiratory complications had “progressed and not subsided.” 3. Although there are several negative medical opinions in the record, none of them, even when taken together, adequately address the full range of causal questions at issue or consider the Veteran’s competent lay reports of onset and course despite multiple remand orders expressly ordering such consideration and laying out the specific questions at hand. Most notably, while an October 2018 VA opinion includes detailed discussions indicating that the Veteran’s various pulmonary problems over the years are largely related to the diagnosed PEG, as previously noted by the Board, it does not (nor does any other opinion of record) discuss whether PEG itself might be related to service, to include considering the aforementioned competent lay reports regarding onset and course of his observable respiratory symptoms (i.e., coughing, shortness of breath, etc.) or conceded herbicide exposure therein. Even the most recent December 2020 VA examination opinion—which was based on conclusory and cursory rationale and not sufficiently responsive to the breadth and substance of the Board’s questions in its prior July 2020 remand—acknowledges that the Veteran reported a “persistent cough since 1973” and that there was already a “longstanding history of cough, wheezing, and shortness of breath” at the time of his first documented pulmonary diagnoses of record (in 2001). 4. Considering the Veteran’s competence to report the onset, course, and progression of observable symptoms (like coughing or shortness of breath) and the absence of any adequate, probative, or persuasive medical evidence to the contrary in the record, the Board finds the evidence is at least in relative equipoise as to whether symptoms of a respiratory disability (e.g., persistent cough) are related to active service. 5. At no point on appeal is the Veteran’s psychiatric disability shown to cause the type, frequency, severity, or duration of symptoms consistent with total occupational and social impairment under the pertinent rating criteria. 6. Prior to September 16, 2011, the Veteran was rated 70 percent for a service-connected psychiatric disability and meets the schedular TDIU criteria under 38 C.F.R. § 4.16(a). 7. The evidence reasonably shows that the Veteran has a long history of severe psychiatric impairment due to symptoms including (though certainly not limited to) intermittent suicidal ideation (e.g., in May 2008 private treatment records and April 2011 VA treatment records), homicidal thoughts (e.g., in February 2005 treatment records and in a May 2007 statement indicating he abused his wife, children, and animals post-service and wanted to kill his wife and in-laws), concentration deficits, and “loss of interest in daily grooming” throughout the appeal period and even predating the claim to reopen that underlies this initial rating appeal. Considering the above, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s service-connected psychiatric disability caused impairment that likely precluded adequately coping with the stressors involved or otherwise maintaining consistent and adequate work quality in an unsheltered environment consistent with his education (i.e., high school) and prior work experience (e.g., as a laborer, housekeeper, and VA domiciliary technician, the last of which appears to be the most technically complex but also involved interacting with patients every two hours and, as February 2005 treatment records show, was “very stressful” and caused him “a lot of anxiety”) even prior to September 16, 2011. CONCLUSIONS OF LAW 1. The criteria for service connection for a variously diagnosed respiratory disability are met. 38 U.S.C. §§ 1110, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b) (2020). 2. The criteria for more than a 70 percent rating for service-connected psychiatric disability are not met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.130 (2020). 3. The criteria for TDIU prior to September 16, 2011 are met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from March 1971 to March 1973. These matters are before the Board of Veterans’ Appeals (Board) on appeal from July 2011, November 2013, and July 2017 rating decisions appealed in timely August 2011, November 2013, and August 2017 notices of disagreement (NODs) and perfected by timely August 2014, January 2018, and March 2019 substantive appeals in response to August 2014, December 2017, and March 2019 statements of the case (SOCs). The Board previously remanded the respiratory claims in September 2015, February 2017, February 2019, and July 2020, the psychiatric claim in February 2019 and July 2020, the foot claim in February 2017 and February 2019 (for issuance of an appropriate SOC) and July 2020 (for substantive development), and the TDIU claim in February 2019 and July 2020. For the reasons outlined above, the Board grants service connection for a variously diagnosed respiratory disability and TDIU prior to September 16, 2011, obviating any need for further discussion thereof at this time. Thus, the analysis below will focus on the increased rating claim at issue. VA’s duty to notify in this initial rating appeal was satisfied by notice provided with his original claim to reopen service connection that led to this appeal, as well as SOCs and supplemental SOCs issued since. VA has obtained the Veteran’s service treatment records (STRs) and pertinent post-service treatment records. The Veteran has had multiple VA examinations assessing the severity of the disability on appeal and, together, they describe it in sufficient detail to allow for application of the pertinent rating criteria. Crucially, the Veteran has had ample opportunity to respond and has not alleged that notice or development was inadequate. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 1. More than a 70 percent rating for service-connected psychiatric disability Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran’s PTSD is rated according to the General Rating Formula for Mental Disorders. Under the relevant rating criteria, a 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name. The symptoms listed in VA’s general rating formula for mental disorders 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). The Board is precluded from differentiating between service-connected and non-service-connected disorders absent clinical evidence clearly showing such distinction. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board remanded this matter multiple times to attempt to clarify the applicable diagnoses and whether distinctions under Mittleider are possible but has not received any adequate response indicating they are. Therefore, the Board will consider the entire psychiatric disability picture, which includes both the service-connected major depressive disorder with PTSD and his history of polysubstance abuse, anxiety, insomnia, and other psychiatric complaints. This both ensures that the Veteran receives a sympathetic review and renders harmless any deficiencies in the relevant examinations of record related to the ruling in Mittleider. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The criteria for a higher rating in this instance primarily contemplates symptoms or pathology with frequency, severity, or duration that is gross or persistent (e.g., gross impairment of thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior, or persistent danger of hurting one’s self or others), or that otherwise would patently interfere with independence or basic functioning (e.g., intermittent inability to perform routine, as opposed to more complex or unique, activities, memory loss for closely held and intimate details, or disorientation to time or place). Notably, many of the kinds of symptoms considered consistent with a 100 percent rating are also associated with altered perception of reality (e.g., gross impairment of thought processes, persistent delusions or hallucinations, disorientation to time or place). Most crucially, all of the noted symptoms are facially consistent with the overall requirement that the resultant occupational and social impairment must be total. Here, however, the preponderance of the evidence does not show the kind of total impairment required under the pertinent criteria, either explicitly or through symptoms of comparable severity. Rather, the record shows that, as severe as the Veteran’s psychiatric disability has been over the years, he has consistently maintained his connection to family members, participation in some social activities and leisure pursuits, and some degree of “normal” or routine functioning despite periods of relative worsening in symptoms (e.g., intermittent suicidal and homicidal thoughts, cognitive impairment, notations of slow, measured, and deliberate speech with little inflection, restricted affect, etc.). For example, in February 2005, he said he thought about killing other people when he became very angry, but understood he couldn’t follow through and reported he continued to go to the gym and work without major incident (though it was very stressful). Although that same record and a May 2007 statement indicate a history of familial abuse and homicidal thoughts about his wife and in-laws, the latter also indicates he contacted VA providers afterwards to seek help for his problematic thoughts and behavior and he expressed awareness of triggers that caused him to spiral into anger and irritability, indicating that, even in these periods of relative volatility, he found moments of clarity and insight into his condition. Although a May 2008 record notes suicidal ideations and admitting to “thinking in a ruminating and obsessive way about his war experience,” the provider at the time did not feel that communication or thoughts themselves were grossly impaired at the time. Subsequent records do not suggest such problems were constant or persistent, as mental status examinations throughout the appeal period appear to be largely unremarkable, with some variability and fluctuation in presentation from time to time. It is also worth noting that there is scant evidence suggesting any suicidal or homicidal thoughts throughout the appeal period have ever been anything but intermittent, much less persistent or representative of gross thought impairment. For example, April 2011 and May 2013 records both note suicidal ideation—in the former, he also had poor to fair insight and had just relapsed, and in the latter, he was fixated on anger problems and irritability and reported “memory problems, poor energy…and feelings of hopelessness.” However, when asked to describe his normal day in May 2013, he painted a relatively unremarkable picture (e.g., attending appointments, watching inspirational shows, meditating, going fishing, and spending time with his wife). The Board also finds it notable that more recent records, particularly since he went into remission for his various substance abuse disorders, suggest the Veteran has been steadily improving overall. A December 2017 VA examination report indicates the Veteran kept a fairly normal schedule (waking around “6-7 am” and going to bed around “8 and 8:30 pm”) with his days consisting of coffee with breakfast, drinking lots of water, walking “some,” watching television, and checking the mail. He even said he and his wife enjoyed going to a local restaurant, church, and the grocery store. While a December 2019 VA examination report does describe suicidal ideation as chronic, it was also passive, without plan or intent. Moreover, that same examiner noted the Veteran continued to take his medications and went to VA appointments for medication management, indicating a significant degree of adequate functioning that does not suggest total psychiatric impairment. Although he did have “near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively,” this falls short of the kind of persistently or grossly disabling problems that altogether preclude (as opposed to merely interfering with) routine functions. Similarly, May 2008 records suggesting the Veteran had “loss of interest” in grooming himself do not quite reach the level required to suggest wholesale inability (as opposed to mere aversion or apathy). The Board does acknowledge that a more recent October 2020 VA examination report diagnosed “Persistent Depressive Disorder with Major Depressive Episodes,” which certainly invokes the term persistent and, in this way, facially resembles the 100 percent rating criteria symptoms. However, a closer review of that examination report shows the Veteran said he continued to live with his wife of 44 years, his daughter, and two grandchildren, maintained contact with all six of his adult children, played saxophone in his church band, and maintained several leisure activities, which certainly does not suggest he was then totally impaired. Indeed, none of the symptoms noted on that examination, either individually or together in any combination, suggest a completely disabling picture. Likewise, an earlier May 2018 VA psychiatric examination report that found the Veteran totally occupationally and socially impaired found no symptoms that were actually consistent with that dire assessment. A closer review of the actual opinion shows the examiner considered both his physical and mental impairments because the examiner felt it difficult to separate the two. However, the already thinly worded reasoning behind that conclusion is readily contradicted and rendered less probative by the fact that every other VA examiner has been able to do just that. Consequently, the Board finds the preponderance of the evidence is against finding the Veteran’s service-connected psychiatric disability, even when considering the entirety of his psychiatric presentation, has caused symptoms or pathology consistent with those laid out in the 100 percent rating criteria, or otherwise approximated total occupational and social impairment. Therefore, the appeal in this matter must be denied. REASONS FOR REMAND 1. Service connection for a foot disability is remanded. The prior remand explicitly asked for a medical opinion on whether any current foot disabilities might be related to military service, to include the aggregate effect of physical strain therein. In January 2021, VA obtained a negative medical opinion regarding aggravation of pes planus does not adequately consider the Veteran’s reports of “foot pain with walking in service” despite specifically noting them in the evidentiary review portion of the opinion, and appears to dismiss the Veteran’s reports based solely on the absence of corroborating service records. The opinion also applies the wrong evidentiary standard in finding that pes planus was “clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.” In this case, the Veteran’s pes planus was noted at enlistment and, therefore, the “clear and unmistakable evidence” that a disability both pre-existed service and was not aggravated therein required to rebut the presumption does not apply. Moreover, the examiner did not, as instructed, consider or discuss the aggregate effect of strenuous physical activity during service. Finally, although the examiner diagnosed multiple foot conditions, the opinions only addressed pes planus. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Schedule the Veteran for an in-person or telehealth (whichever is appropriate) examination by a podiatrist or other appropriate clinician to determine the nature and cause of any foot disability entities found. Based on a review of the record, examination of the Veteran (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HIS SYMPTOMS), and any tests or studies deemed necessary, the examiner must respond to the following: (a.) Please diagnose all foot disability entities found. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record (including but not limited to diagnoses for plantar fasciitis, hallux valgus, and bilateral arthritis made on the prior January 2021 VA examination). If any previously documented diagnoses are no longer or otherwise not felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria. (b.) If the Veteran DOES NOT MEET THE CRITERIA FOR A FORMAL DIAGNOSIS, please indicate whether he has foot symptoms severe enough to cause functional impairment and, if so, identify such impairment. (c.) If there ARE undiagnosed symptoms causing functional impairment, please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such are related to military service, to include the aggregate effect of strenuous physical activities therein. (d.) For each formally diagnosed disability OTHER THAN pes planus (including but not limited to plantar fasciitis, hallux valgus, and bilateral arthritis), please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran’s military service, to include the aggregate effect of strenuous physical activities therein. (e.) Please also opine as to whether the Veteran’s pes planus, was AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) AGGRAVATED (PERMANENTLY WORSENED BEYOND ITS NATURAL PROGRESSION) BY his military service, to include the aggregate effects of strenuous physical activity therein AND any pertinent lay reports regarding foot symptoms therein (e.g., foot pain with walking). The examiner MUST CONSIDER ALL RELEVANT LAY AND MEDICAL EVIDENCE relating to severity of pes planus symptoms at enlistment, during service, and at separation in forming this opinion. [CONTINUED ON NEXT PAGE]   All opinions must include a detailed rationale. Providing an opinion or conclusion without enough explanation will delay processing of the claim and require further clarification. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yuan, 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.