Citation Nr: 21021377 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 19-24 298 DATE: April 12, 2021 ORDER For the entire period on appeal, entitlement to an initial disability rating of 50 percent, but no higher, for an acquired psychiatric disorder (variously diagnosed as unspecified trauma and stressor related disorder, PTSD, and alcohol use disorder) is granted. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide exposure or secondary to service-connected acquired psychiatric disorder, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to herbicide exposure or secondary to service-connected acquired psychiatric disorder, is remanded. Entitlement to service connection for chronic sinus issues, to include as due to herbicide exposure, is remanded. Entitlement to service connection for chronic bronchitis, to include as due to herbicide exposure, is remanded. FINDING OF FACT For the entire period on appeal, the Veteran’s acquired psychiatric disorder is manifested by occupational and social impairment with reduced reliability and productivity; it is not manifested by occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating of 50 percent, but no higher, for an acquired psychiatric disorder, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1964 to August 1967. He appeals an August 2018 rating decision granting entitlement to service connection for an acquired psychiatric disability with a noncompensable rating, and denying entitlement to service connection for chronic bronchitis, chronic sinus issues, hypertension, and OSA. The Veteran requested a hearing before the Board but withdrew his request in June 2020. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Further, “[w]here 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 required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. When evaluating psychiatric disorders, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. 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 examination. See 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. A veteran may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." See Brady v. Brown, 4 Vet. App. 203, 206 (1993). Thus, granting separate ratings for multiple psychiatric diagnoses would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. 1. Entitlement to an initial compensable rating for an acquired psychiatric disorder. Service connection for unspecified trauma and stressor related disorder was granted in an August 2018 rating decision, at which time a noncompensable rating was assigned, effective September 2017. The Veteran contends that a compensable rating is warranted for his service-connected acquired psychiatric disorder. After review of the evidence, the Board finds that an initial rating of 50 percent, but no higher, is warranted. The Veteran’s psychiatric disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides the general rating formula for mental disorders. Under the applicable diagnostic criteria, a noncompensable rating is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is warranted for 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 continuous medication. Id. A 30 percent rating is warranted for 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, and mild memory loss (such as forgetting names, directions, recent events). Id. 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for 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 ideations; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of the veteran’s personal appearance and hygiene; difficulty in adapting to stressful circumstances (including in work or work like settings); inability to establish and maintain effective relationships. Id. 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 Board notes that although the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). After a review of the lay and medical evidence, the Board finds that the Veteran’s symptoms most closely approximate the criteria for a 50 percent rating, but no higher, for the entire period on appeal. At his January 2018 mental health consultation, the Veteran was properly groomed and described his own mood as “euthymic”. The examiner found the quality of his thought and speech patterns to be within normal limits. The examiner noted that the Veteran endorsed positive future plans, had a positive social support system with a sense of responsibility to his family, had positive coping and problem-solving skills, and endorsed satisfaction with life. The Veteran reported that he does not like being around people and has problems with trusting others, which he attributed to a variety of life experiences. Specifically, he reported that his family was not very close growing up and that he does not feel as though he has loving feelings towards others, even those whom he engages with. He reported that he does experience mild anxiety but stated that it does not happen very often. Typically, occurring when he is “around people." He denied significant problems with irritability and anger. He reported severe insomnia since his time in Vietnam but did not report panic attacks or impairment of memory at the time. The Veteran was afforded a VA examination in July 2018 where he was first diagnosed with a psychiatric disorder. The examiner determined that the Veteran symptoms did not meet the criteria for PTSD but did render a diagnosis of unspecified trauma and stressor related disorder. The examiner accurately noted that the Veteran did not have more than one mental disorder diagnosed at the time. The Veteran reported that he maintained a good relationship with his children, occasionally visiting his son that “he is very close to”. He attested to spending most of his time at home with his partner and also spends time in his yard. He reported that he drinks 4-5 alcoholic beverages per evening to relax and assist in falling asleep. However, he asserted that he does not get drunk and his drinking has never caused any problems. The examiner noted that the Veteran exhibited proper grooming/hygiene and was cooperative throughout the evaluation. His affect and mood were appropriate to the situation, his thought processes were logical, and he was oriented in all spheres. He denied any suicidal ideations or intentions. After examination of the Veteran, the examiner noted chronic sleep impairment as the only symptom of the Veteran’s psychiatric condition. The Veteran has expressed vehement disagreement with the results of the 2018 VA examination, even questioning the competency of the examiner. However, the examination was conducted by a qualified medical professional and the results are consistent with the Veteran’s January 2018 mental health evaluation. As such, the Board finds the January 2018 mental health evaluation and the July 2018 VA examination to be highly probative and affords them significant probative weight. The Veteran submitted a private mental health assessment conducted in February 2020. On this occasion, the Veteran reported that his symptoms had become worse in the past month and he was diagnosed with posttraumatic stress disorder with delayed expression. A separate diagnosis of alcohol use disorder was also provided. However, the Board reiterates that the assigned rating is based on the actual impairment of earning capacity due to the Veteran’s symptoms regardless of the number of psychiatric diagnoses presented. To that effect, the February 2020 examiner noted that the Veteran appeared appropriately groomed, displayed a euthymic affect, and his speech, attention, and concentration were normal. Overall, his thought processes were logical, and goal directed. He denied hallucinations or delusion and denied suicidal ideations as well. The examiner found his judgement was good and his memory appeared grossly intact, though his insight was poor. The Veteran reported that he is unable to tolerate crowds, often experiences panic symptoms when unable to control his environment, uses alcohol to avoid distressing memories, and has altered his daily routine to provide an optimal level of security. The Veteran specified that he has a growing sense of panic when in crowds but is able to remove himself from such situations. Panic attacks were not specifically reported, and diagnostic testing indicated a minimal level of anxiety. Diagnostic testing indicated that although the Veteran engaged in hazardous or harmful alcohol consumption, his overall symptomatology was indicative of mild depression. No adverse impact on his social or occupational abilities were reported due to his drinking. The Veteran did report that his relationships with others have been severely impacted by his psychiatric disorder. Specifically, he reported that he does not interact socially with others, with the exception of his domestic partner. Although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of occupational and social impairment. The Veteran contends that he has suffered from severe insomnia since service. Specifically, the Veteran states that he wakes up every night in the early morning and is unable to fall back asleep. He only gets a full night’s sleep about once every two weeks. He also reports that he experiences anxiety attacks at social functions and strives to avoid them. He reports a complete lack of a social life. He states that anxiety affects his ability to conduct business as he trusts no one. He admits that he drinks several alcoholic beverages nightly to relax and get to sleep. He reports mood changes and memory loss. The Board observes that the Veteran’s psychiatric disorder undoubtedly has an effect on his occupational and social functioning. Despite his symptoms, the Veteran was able to maintain a successful career for over 30 years until voluntary retirement. In addition, his first marriage lasted over 30 years and he has maintained a second long-term relationship for over ten years. The Veteran has continually reported good relationships with his children and grandchildren. The Veteran reported to his private physician in February 2020 that his condition had recently worsened; however, the evidence continues to show that his disorder is manifested primarily by chronic sleep impairment, depressed mood, anxiety, suspiciousness, and panic attacks (weekly or less often). Based on the foregoing, the Board finds that the Veteran’s psychiatric symptoms most closely approximate the criteria for a 50 percent rating, but no higher. Of note, the Veteran endorsed symptoms such as difficulty in understanding complex commands, forgetting to complete tasks, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The evidence does not show, however, that his symptoms have resulted in total occupational and social impairment to warrant a 100 percent rating. He has never endorsed symptoms such delusions or hallucinations, exhibited gross impairment in thought process or grossly inappropriate behavior, or shown an inability to perform activities of daily living. The Veteran, through his representative, argues that he displays gross impairment in thought processes because he strongly believes that President Lyndon Johnson supported US involvement in the Vietnam War because he owned stock in a company that built and supplied helicopters. The Board recognizes that the Veteran maintains a distrust for authority figures, but the evidence does not indicate that this has resulted in total occupational and social impairment. For instance, historically, the Veteran maintained a successful career for over thirty years and has presented no current evidence that a distrust for authority negatively impacts his employment or ability to be employed. Furthermore, the Veteran has maintained a long-term relationship with D.M. See e.g. January 2021 statement from D.M. This long-term relationship is not reflective of total social impairment. As such, a 100 percent rating is not warranted. The record also does not reveal evidence indicative of occupational and social impairment with deficiencies in most areas to warrant a rating of 70 percent. The Veteran’s representative points out that the Veteran endorsed thoughts of taking his own life in a January 2018 mental health consult. However, this assertion is misleading. The Veteran admitted during the January 2018 mental health consult that he had entertained such feelings 5-6 years prior, many years prior to the period on appeal, yet formulated no plan nor made any attempts at self-harm. Furthermore, the examiner determined at the time that the Veteran presented as a low risk for self-harm. At no other time has the Veteran endorsed thoughts of self-harm. In addition, outside of a two-week period in November 2016, several years prior to the period on appeal, the evidence does not show symptoms indicative of near continuous panic or depression affecting the Veteran’s ability to function independently. To be sure, the record indicates that the Veteran’s symptoms have negatively affected his ability to participate in social gatherings at times. However, all medical examinations of record have found the Veteran to suffer from mild anxiety and/or depression and it has not been characterized as near continuous. Furthermore, the record does not show examples of behavior such as unprovoked irritability with periods of violence, spatial disorientation, or neglect of personal hygiene. The Veteran’s long work history and multiple successful long-term relationships indicate that he does not have an inability to establish and maintain effective work and social relationships of the kind indicative of a 70 percent rating. In considering the appropriate disability ratings, the Board has also considered the Veteran’s statements that his acquired psychiatric disorder is worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s acquired psychiatric disorder has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. In sum, the Board finds that the Veteran’s impairment due to his acquired psychiatric disorder has been most consistent with a 50 percent disability rating, but no higher, for the entire period on appeal. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. See Gilbert, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107 (b). REASONS FOR REMAND 2. Entitlement to service connection for hypertension, to include as due to herbicide exposure or secondary to service-connected acquired psychiatric disability. The Veteran has a current diagnosis of hypertension. Exposure to herbicides has been conceded. To date, the Veteran has not yet been afforded a VA examination for his claimed hypertension. Additionally, given the NAS recent upgrade of hypertension from its previous classification in category of ”limited or suggestive” evidence of an association with exposure to Agent Orange to the category of ”sufficient” evidence of an association in Update 11 (2018), the Board finds a remand is necessary to afford the Veteran a VA examination and to obtain a medical opinion. 3. Entitlement to service connection for OSA, to include as due to herbicide exposure or secondary to service-connected acquired psychiatric disorder. The Veteran has a current diagnosis of OSA. The Veteran submitted medical articles discussing the relationship between OSA and psychiatric disorders. To date, he has not yet been afforded a VA examination. On remand, the Veteran should be afforded a VA examination and a medical opinion should be obtained. 4. Entitlement to service connection for chronic sinus issues, to include as due to herbicide exposure. 5. Entitlement to service connection for chronic bronchitis, to include as due to herbicide exposure. The Veteran argued in February 2021 that he experienced sinus and bronchitis symptoms during service in May 1965, March 1967, and April 1967. See January 2021 statement. He has also asserted these disorders are due to exposure to herbicides during service. However, he has not been afforded VA examinations to assess the validity of his claims as required. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006) (An examination is required when there is an indication that a current disability is related to service and there is insufficient evidence to decide the case). Accordingly, remand for VA examinations to determine the etiology of the Veteran’s claimed disorders is necessary. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records that are currently not of record. If the Veteran has received any relevant private treatment, he should be afforded the opportunity to submit these records. 2. After completion of the development above, schedule the Veteran for an examination to determine the etiology of his claimed hypertension. The examiner is asked to respond to the following inquiries: (a.) Is it at least as likely as not that the Veteran’s hypertension is causally or etiologically due to active service, to include exposure to herbicide agents in service, taking into consideration the NAS 2018 conclusion that hypertension has been upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association to exposure to herbicides; the examiner should specifically address Update 2018 from NAS. (b.) Is it at least as likely as not the that Veteran’s hypertension is proximately due to OR aggravated beyond a natural progression by his service-connected acquired psychiatric disorder? In so opining, the examiner is asked to consider and discuss the medical articles submitted by the Veteran in January 2021 regarding the relationship between hypertension and psychiatric disorders. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved. 3. After completion of the development outlined in Order #1, schedule the Veteran for an examination to determine the etiology of his claimed OSA. The examiner is asked to respond to the following inquiries: (a.) Is it at least as likely as not that the Veteran’s OSA is attributable to active service, to include exposure to herbicide agents in service? (b.) Is it at least as likely as not the that Veteran’s OSA is proximately due to OR aggravated beyond a natural progression by his service-connected acquired psychiatric disorder? (c.) In so opining, the examiner is asked to consider and discuss the medical articles submitted by the Veteran in January 2021 regarding the relationship between OSA and psychiatric disorders as well as the January 2018 private medical opinion opining the Veteran’s OSA is more likely than not due to his exposure to herbicides. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved. 4. After completion of the development outlined in Order #1, schedule the Veteran for an examination to determine the etiology of his claimed chronic sinus condition. The examiner is asked to identify all sinus disorders present. For each disorder identified, the examiner is asked to respond to the following inquiry: (a.) Is it at least as likely as not that the Veteran’s chronic sinus condition is causally or etiologically due to active service, to include exposure to herbicide agents? (b.) In so opining, the examiner should consider and discuss: the in-service complaints in March 1967, April 1967, specifically noting rhinorrhea and a productive cough; and the January 2018 private medical opinion opining the Veteran’s chronic sinus issues and nasal polyps were more likely than not due to his exposure to herbicides. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved. 5. After completion of the development outlined in Order #1, schedule the Veteran for an examination to determine the etiology of his claimed chronic bronchitis. The examiner is asked to respond to the following inquiry: (a.) Is it at least as likely as not that the Veteran’s chronic bronchitis is causally or etiologically due to active service, to include exposure to herbicide agents? (b.) In so opining, the examiner should consider and discuss: the in-service complaints in May 1965, March 1967, April 1967, specifically noting itching and stinging sensation in the back and chest, rhinorrhea, a productive cough, and slightly coarse breath sounds; and the January 2018 private medical opinion opining the Veteran’s recurrent bronchial infections were more likely than not due to his exposure to herbicides. (c.) All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 6. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. L. ANDERSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate Counsel