Citation Nr: 21021764 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 13-16 208 DATE: April 13, 2021 ORDER An initial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is remanded. FINDING OF FACT For the entire period at issue, the medical evidence of record shows that the Veteran’s PTSD symptoms have been productive of occupational and social impairment with reduced reliability and productivity but not symptoms of such severity and/or frequency as to produce occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1969 to July 1971, from January 2007 to March 2010, and from May 2010 to August 2010. In April 2019, the Veteran testified at a Travel Board hearing. A transcript is of record. In July 2020, the Board of Veterans’ Appeals (Board) remanded this case for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the veteran. Gilbert, 1 Vet. App. at 53. 1. Entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD The average impairment of earning capacity due to PTSD is determined by the criteria set out in the General Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under these criteria, 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. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Although PTSD is rated under the General Rating Formula, the use of the term “such as” in 38 C.F.R. § 4.130 indicates that the listed symptoms are not intended to constitute an exhaustive list. Rather, the symptoms listed under the General Rating Formula for Mental Disorders are to serve as examples of the type and severity of symptoms or their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The symptoms to be considered when rating a Veteran’s PTSD are not limited to those listed in 38 C.F.R. § 4.130. Instead, VA shall consider all symptoms of a Veteran’s PTSD that affect his level of occupational and social impairment, including, if applicable, those identified in the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) provided additional guidance in rating psychiatric disability. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Specifically, the Federal Circuit emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Id. at 2. It held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 2. The Veteran is currently assigned a disability rating of 50 percent for his service-connected PTSD and asserts that he is entitled to a higher rating for that disability. As will be discussed more fully below, the Board finds that an increased disability rating for PTSD is not warranted. The Veteran attended a VA examination in February 2011 which diagnosed PTSD. At the examination, he reported intrusive thoughts multiple times a day and dreams several times a week which caused problems with falling and staying asleep. He also reported flashbacks, irritability, depression, anger with hallucinations of an auditory type. Socially, the Veteran lived with his second wife and had 3 children. He worked at the Department of Corrections and was able to adequate perform activities of daily living. See February 2011 VA examination. An April 2013 VA examination again diagnosed PTSD. The examiner found the Veteran’s symptoms caused occupational and social impairment with reduced reliability and productivity. Socially, the Veteran reported he was married for the second time for 23 years and lived with his wife. He described his relationship as fair and suggested that he was irritable and withdrawing. He reported having 3 children and 2 grandchildren. He suggested he had a poor relationship with one daughter but fair relationships with his other daughter and grandchildren. He also reported having 1 close friend who he saw 3 to 4 times a week, denied having causal friends, suggested he stayed to himself but fished, did household chores, yard work, read, attended church once per week and ate out once a month. Occupationally, he worked at Department of Corrections, but reported having problems with irritability with co-workers as well as mild problems with concentration with minimal impact on his work performance. The Veteran endorsed symptoms such as chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or worklike setting. See April 2013 VA examination. On June 2015 VA examination, the examiner again PTSD which caused the Veteran to have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. Currently divorced, the Veteran reported he had been apart from his wife for about 2 years after a 23-year marriage. He had 2 children and 2 grandchildren. It was noted that the Veteran had been deployed to both Vietnam and Afghanistan, and that he was currently working for the Department of Corrections as a driver. He reported that his work was becoming difficult for him because he got agitated quickly and had gotten into arguments with his coworkers and supervisors. He stated he had been suspended for some incidents. He was taking medication for his PTSD but reported having little symptoms relief. Symptoms including depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting were endorsed. Behaviorally, the Veteran was neatly dressed, and groomed speech was coherent and goal directed; thought process was linear and devoid of delusional content. There was no evidence of a perceptual difficulty and he was alert and oriented to time place and person. The examiner concluded that despite receiving treatment, the Veteran continued to have difficulty with irritability, poor sleep, nightmares, and anxiety. He denied suicidal and homicidal ideations. It was further noted that, since the last examination, the Veteran had divorced from his wife and was estranged from his children. See June 2015 VA examination. In October 2018, the Veteran attended a VA examination to evaluate the nature and severity of his psychiatric symptoms. The diagnosis of PTSD was continued. The examiner found his symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior self-care and conversation. At the examination, the Veteran reported he had been married and divorced twice. His first marriage ended after his wife died, and the second after divorce five years earlier. He had three children and currently lived alone with one of his daughters. He described his home and family life as comprised of some stability, support, conflict and strain. He reported that he rode his motorcycle and attended church, however, he could be isolative and avoidant at times. Occupationally, he last worked in May 2018. He had been employed with the Department of Corrections for 30 years and explained that he was fired due to accusations that he was involved in drug activity and assaulted a fellow officer. The Veteran denied these accusations and fought the charges and subsequent termination. The Veteran also indicated he was taking depression and sleep medications but could not recall the names. He noted that he had attended therapy in the past but was not actively receiving treatment. On examination, his symptoms including depressed mood, anxiety, suspiciousness, mild memory loss, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships were all endorsed. The Veteran presented as dysphoric and with a constricted affected. He was alert and oriented with no evidence of disturbances in speech, thought, memory, concentration or behavior. His insight and judgment were estimated as fair. While no change in the diagnosis of PTSD was found, the examiner noted his condition was active. The examiner also determined the Veteran did not pose a threat of danger or injury to himself or others. See October 2018 Disability Benefits Questionnaire (DBQ). At the April 2019 Board hearing, the Veteran testified to experiencing worsening PTSD symptoms since his last VA examination. In particular, he reported suicidal thoughts as well as shortened patience and temper. He preferred to isolate himself but noted that he attended church sometimes. Additionally, he indicated he last worked in May 2018 following an incident where he was accused of hitting an officer. However, the Veteran denied the action. The Veteran also testified he did not want to be around his family much and his patience was short with his children. He reported only sleeping two to three hours at night and suffering from nightmares which caused night sweats. He also reported that his hygiene suffered with his fiancée sometimes having to remind him to take a bath. See April 2019 Hearing Transcript. Following the hearing, two examinations were completed which evaluated the Veteran’s PTSD symptoms. However, as noted in the July 2020 Board remand, these examination reports show vastly different symptomatology. For instance, in June 2019, the Veteran was examined by a VA examiner who noted that the Veteran reported being divorced and living alone. He performed yard work, ate out, watched television, had friends, attended church, and visited family that lived near him. The Veteran denied any current mental health treatment but reported avoiding people and experiencing loneliness as well as depression. His symptoms included having a depressed mood, suspiciousness, and chronic sleep impairment. Behaviorally, it was noted that the Veteran was neatly groomed, calm, cooperative with logical thought and stable mood, and the Veteran denied any suicidal or homicidal ideations. Overall, the June 2019 VA examiner found the Veteran’s level of occupational and social impairment to be manifested by reduced reliability and productivity. See June 2019 VA examination. Subsequently, the Veteran submitted an October 2019 private DBQ from a licensed independent social worker who opined that the Veteran suffered from total occupational and social impairment. She noted that the Veteran suffered from suicidal ideations and an inability to maintain meaningful friendships or relationships. She also noted the Veteran’s report that since his last DBQ, he had been verbally aggressive and abrasive, making threats towards others to harm them physically, and that he remained on guard and ready to fight. He was also noted to be depressed and withdrawn severally. The Veteran reported being prescribed medication for his PTSD and attending group and individual therapy through VA, but it triggered him to feel anxious and he was afraid of losing control. He also reported having dreams about killing people. The examiner found the Veteran’s PTSD symptoms included having a depressed mood, anxiety, suspiciousness, near continuous panic attacks, chronic sleep impairment, impairment of short and long term memory, flattened effect, speech intermittently illogical, gross impairment in thought processes or communication, difficulty adapting to stressful circumstances, an inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, spatial disorientation and grossly in appropriate behavior. The examiner also noted additional symptoms including shame, guilt, and loneliness. See October 2019 Private DBQ. Pursuant to the Board’s July 2020 remand, an October 2020 VA DBQ was completed to evaluate the nature and severity of the Veteran’s PTSD and clarify the disparate findings reported during the October 2019 private DBQ as compared to the June 2019 VA examination. The October 2020 examiner confirmed the Veteran’s diagnosis of PTSD and opined the disability caused occupational and social impairment with reduced reliability and productivity. At the examination, the Veteran reported he was single, but had been married and divorced twice. He had three children and currently lived alone. He indicated he had a girlfriend and his children were his primary sources of support. He also reported he was moderately socially active, with some regular social activities and leisure activities but he could be socially isolated and avoidant at times. Occupationally, the Veteran reported he last worked in 2018. He had been with the Department of Corrections for 32 years but was fired because it was claimed that he assaulted a correctional officer and obstructed justice. He was found not guilty of the charges. While he had attempted to find work, he had been told he was “too old”, but he reported feeling capable of working. He denied any other history of mental health services but was currently taking prescription medication. The examiner found the Veteran experienced symptoms including depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The Veteran presented as dysphoric and with a constricted affect. He was alert and oriented and did not evince any disturbances in speech, thought, memory, concentration, or behavior. His insight and judgment were estimated as fair. See October 2020 Disability Benefits Questionnaire. Additionally, the Veteran reported he began receiving VA mental health treatment, where he was previously not receiving any. Therefore, VA treatment records were obtained pursuant to the July 2020 Board remand. A review of those VA treatment records, dated from May 2020 to June 2020, show the Veteran’s treatment for his PTSD symptoms, including a discussion regarding mental health medications. The Veteran endorsed difficulties with chronic PTSD symptoms, including bad dreams and distressing memories about his experiences in Vietnam part of infantry, difficulty staying asleep, increased irritability, being easily started and on edge, and avoidance of people and places that reminded him of his Vietnam experiences. See VA treatment records, received July 2020. VA treatment records from August 2020 show the Veteran reported difficulties with sleep, nightmares, irritability and social withdrawal. However, a physician follow-up notation indicated the Veteran’s PTSD exacerbation and presenting symptoms were secondary to noncompliant treatment. It was recommended the Veteran be consistent with medication or change medication. See VA treatment records, received September 2020. Considering the foregoing evidence, the Board finds that an increased rating for the period on appeal is not warranted, as the Veteran’s PTSD has not demonstrated symptomatology reflective of the criteria for a 70 percent rating. In this regard, the Board acknowledges the Veteran has presented consistent symptoms of PTSD throughout the period at issue, including some social isolation avoidance at times, irritability, depression and sleep disturbances. However, the October 2019 DBQ which reported severe symptomatology, including dreams of killing others, depressed mood, anxiety, suspiciousness, near continuous panic attacks, chronic sleep impairment, impairment of short and long term memory, flattened effect, speech intermittently illogical, gross impairment in thought processes or communication, difficulty adapting to stressful circumstances, an inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, spatial disorientation and grossly in appropriate behavior, as well as the Veteran’s hearing testimony regarding suicidal thoughts, isolation, and hygiene concerns are inconsistent with and not supported by the prior as well as subsequent VA treatment records and examinations. In particular, the subsequent October 2020 VA examination shows the Veteran was married for most of the period at issue and while later divorced, he had a girlfriend in 2020 as well as positive relationships with his children. Additionally, the October 2020 examination report documented depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships but there was no discussion of more extreme symptomatology such as suicidal ideations, obsessional rituals and grossly inappropriate behavior mentioned in the private October 2019 dated just one year earlier. Furthermore, such symptoms were not noted in earlier VA examinations or in available treatment records. Additionally, throughout the period on appeal, while varying, the Veteran has maintained some level of social activities. Most recently, he indicated that while he can be socially isolated and avoidant at times, he was moderately socially active, with some regular social activities and leisure activities. Additionally, as previously discussed, the record does not support a consistent report of suicidal ideations, obsessional rituals, illogical speech, panic attacks or neglect of personal appearance and hygiene. Occupationally, the record shows the Veteran was employed most of the period at issue, albeit with some issues surrounding dealings with others and irritability. Notably, while the Veteran was fired from his employment and accused of assault, the record shows the charges were not substantiated. In 2020, he even indicated he felt “capable” of working but his age was a hinderance. Lastly, while the record shows the Veteran has treated his PTSD symptoms with medication, there is no evidence of requiring consistent intensive psychiatric treatment to control his PTSD symptoms during this period at issue. For the foregoing reasons, a disability rating in excess of 50 percent for service-connected PTSD is not supported. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include to include as due to herbicide agent exposure The Veteran contends he is entitled to service connection for hypertension because he was on medication prior to deployment to Afghanistan and that his condition therefore, had its onset while he was on active duty. In the alternative, at the April 2019 Board hearing, the Veteran advanced another theory of causation that his hypertension was a result of his exposure to herbicide agents during his military service in Vietnam. See Hearing Transcript. As discussed in the July 2020 Board remand, a VA examination was performed in November 2012 which provided a medical opinion regarding whether the Veteran’s preexisting hypertension was aggravated by his subsequent periods of active duty service. However, no medical opinion had been obtained regarding whether the Veteran’s hypertension was related to his service in the Republic of Vietnam where he was exposed to herbicide agents. In satisfaction of the July 2020 Board remand, the Veteran was provided a VA examination in October 2020. See October 2020 VA DBQ. After reviewing the service treatment records, the July 2020 remand letter, the hearing transcript, and lay statements from the Veteran, the examiner opined it was less likely than not that the Veteran had a hypertension condition that was caused by injury, event, disease, or related to or approximately due to his herbicide agent exposure during service. However, the examiner did not adequately address the question of whether the Veteran’s hypertension could be related to or proximately due to his herbicide agent exposure in service. Instead, the only rationale provided was that the Veteran’s service treatment records did not show a complaint or treatment of hypertension during the Vietnam service and that the Veteran’s report of medical history dated June 1971 did not show a complaint or treatment of hypertension. See October 2020 VA medical opinion. The fact that there were no complaints of or treatment for hypertension during his military service does not adequately explain the medical possibility that herbicide agent exposure in Vietnam may have caused or aggravated the Veteran’s current hypertension. As such, an addendum medical opinion is required prior to adjudicating this claim. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not caused or aggravated by herbicide agent exposure during his military service. The examiner is asked to provide a specific rationale for the medical opinion presented regarding herbicide agent exposure and hypertension. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.