Citation Nr: 21024749 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 12-07 649 DATE: April 26, 2021 ORDER The claims of entitlement to service connection for left and right upper extremity peripheral neuropathy and entitlement to special monthly compensation based on loss of use of a creative organ are dismissed. Entitlement to service connection for a cardiovascular disorder, to include hypertension, is denied. Entitlement to a disability rating of 70 percent, but not higher, for the service-connected unspecified trauma and stressor related disorder, is granted. REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran withdrew his claims of entitlement to service connection for left and right upper extremity peripheral neuropathy and of entitlement to special monthly compensation based on loss of use of a creative organ in January 2021. 2. The preponderance of the evidence is against a finding that the Veteran has a diagnosis of a cardiovascular disorder, to include ischemic heart disease. 3. The preponderance of the evidence shows that the Veteran’s diagnosed benign essential hypertension that did not begin during his active service, was not chronic in service, and did not manifest to a compensable degree within one year of active service. Symptoms of hypertension were not continuous since service, and hypertension has not been linked to his service. 4. Throughout the appeal period, the Veteran’s service-connected psychiatric disorder has manifested with occupational and social impairment, include no worse than deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but has not caused total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claims for service connection for left and right upper extremity peripheral neuropathy and for special monthly compensation based on loss of use of a creative organ by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for service connection for a cardiovascular disorder, to include ischemic heart disease, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for hypertension, including as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. 4. For the entirety of the appeal period, the criteria for a rating of 70 percent, but not higher, for the service-connected psychiatric disorder have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, DC 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service from October 1970 to April 1972, including service in Vietnam. By way of background, the Board remanded the claim for service connection for ischemic heart disease for further development in September 2016. In a November 2018 decision, the Board denied the Veteran’s appeal for a rating in excess of 50 percent for the service-connected unspecified trauma and stressor related disorder, and remanded his appeal for entitlement to service connection for a heart condition and entitlement to a TDIU. The Veteran appealed his increased rating claim to the Court of Appeals for Veterans Claims (CAVC). In October 2019, CAVC granted a Joint Motion for Partial Remand (JMPR) in which the parties agreed that the Board failed to explain adequately the reasons and bases for denying an increased rating greater than 50 percent for his psychological disorder, and that a remand was necessary for the Board to obtain and consider all relevant treatment records from the Lexington, KY Veterans Medical Center. Pursuant to the November 2018 Board remand, additional development has been completed concerning the Veteran’s claims for service connection for a heart condition, to include ischemic heart disease and hypertension, and his claim for TDIU. Those issues now return to the Board for adjudication. Additionally, the Veteran appealed claims for service connection for left and right upper extremity peripheral neuropathy and for special monthly compensation based on loss of use of a creative organ. He has withdrawn these claims, as is discussed in more detail in the following decision. Withdrawal In a January 2021 Appellant’s Brief, the Veteran, through his representative, withdrew his claims for service connection for left and right upper extremity peripheral neuropathy and for special monthly compensation based on loss of use of a creative organ. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn his appeals for service connection for left and right upper extremity peripheral neuropathy and for special monthly compensation based on loss of use of a creative organ. See January 2021 correspondence. Thus, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these claims, and they are dismissed. Service Connection – Cardiovascular Disorder, To Include Hypertension Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The Board notes that hypertension has not been included as a condition warranting service connection for veterans presumed to have been exposed to tactical herbicides as outlined in 38 C.F.R. § 3.307, 3.309. As such, service connection cannot be granted based on the presumption. However, the Veteran may establish service connection on a direct basis. The Veteran’s service medical records do not show, nor has the Veteran argued, that his hypertension began during his active service. VA medical records show the Veteran has been diagnosed with benign essential hypertension. In his June 2016 Informal Hearing Presentation (IHP), the Veteran argued that he had not been examined for his heart condition since a general examination in 2010 and that a proper examination was warranted. Subsequently, the Board remanded the issue for further development. On VA examination in December 2016, the examiner stated that this Veteran did not have any current heart disability diagnosis or diagnoses. On VA examination in October 2019, the examiner determined, through a series of test and a record review, that the Veteran does not have ischemic heart disease. The examiner found that the Veteran’s diagnosed hypertension was less likely as not related to his in-service herbicide exposure. When considering the Veteran’s hypertension, the examiner explained that, in weighting medical literature concerning hypertension and Agent Orange, it is more probable that the Veteran’s known risk factors for hypertension were the cause of his hypertension. The examiner opined that the Veteran’s hypertension began over 30 years after his service in Vietnam, and closely after he began adding excess salt to his diet. He had additional risk factors of obesity, male gender, and increased age adding to the likelihood that his hypertension is unrelated to his active service. The October 2019 examiner further explained that there was no indication of an unusual type of hypertension, or early onset. There were no nephrotoxic signs or malignant hypertensive events or unusual resistance to medication treatment. Thus, the Veteran’s symptoms do not support any suggestion of proximal relationship to herbicide exposure. There is no competent lay or medical evidence to indicate that the Veteran has a current ischemic heart disease or is currently receiving treatment for such. No treatment records in the file indicate a diagnosis of heart disease at any point during the appeal. While the Veteran is competent to report symptoms susceptible of lay observation, he is not competent to provide a diagnosis in this case. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Thus, the Board gives greater weight to the objective medical evidence in this case, which indicates that the Veteran does not have a current diagnosis of a cardiovascular disorder. The threshold requirement for service connection is competent evidence of the existence of the claimed disability at some point during the appeal. McClain, 21 Vet. App. 319, Brammer, 3 Vet. App. 223. While the Board recognizes the Veteran’s sincere belief in his heart disability claim, the most competent evidence of record does not show that he has a current diagnosis of a cardiovascular disorder, to include ischemic heart disease. Thus, the record does not support service connection for a cardiovascular disorder. In consideration of the Veteran’s hypertension, there is no evidence linking hypertension to his active service. The October 2019 examiner remarked that the Veteran’s other health risks such as his weight and age were more likely to be the cause of his hypertension, particularly in consideration of the diagnosis occurring after an increase in salt intake. This opinion is well reasoned and, therefore, persuasive. There is no evidence of record to suggest that the Veteran’s hypertension began during, or was otherwise related to, his active service, including his presumed in-service tactical herbicide exposure. The preponderance of the evidence is against this service connection claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. At 55-57. For these reasons, service connection for a cardiovascular disorder, to include hypertension, must be denied. Increased Rating – Unspecified Trauma & Stressor-Related Disorder The Veteran contends that his service-connected unspecified trauma and stressor-related disorder warrants a rating higher than 50 percent. The Board finds that throughout the appeal period, his diagnosed psychiatric disorder warrants a rating of 70 percent, but not higher. Disability ratings are determined by comparing a Veteran's present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran’s service-connected psychiatric disorder is rated under DC 9413. Under this diagnostic code, a 70 percent rating is assigned with an 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; 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 personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. A 100 percent 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; 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. 38 C.F.R. § 4.130 DC 9434. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). On the other hand, if the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. “[A] veteran may only qualify for a given disability rating under [38 C.F.R. § 4.130] by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The United States Court of Appeals for Veterans Claims (Court) has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). On VA examination in January 2014, the Veteran reported that he was currently attending group and individual treatment, but that he experienced several nightmares per week, chronic irritability, and avoidance of social conditions. He also reported mild memory issues which impaired his work as a plumber. He endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. He also indicated that he experienced thoughts of suicide but did not have a plan or intent. The examiner remarked that the Veteran’s psychiatric disorder resulted in occupational and social impairment with reduced reliability and productivity. On VA examination in August 2015, the examiner confirmed the Veteran’s diagnosis as unspecified trauma and stressor related disorder, noting that his symptoms resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported he had been married for 22 years with a strong relationship with his wife, saw his nephew twice a week, and helped to cook meals. He occasionally went to the VFW or The American Legion and spoke with his sister on the phone frequently. He also indicated that he avoided crowds, was easily irritable, and loud noises caused increased anxiety. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. He also mentioned that he had thoughts of suicide and had access to a weapon, but did not have any plans. He experienced nightmares, sleep disturbances, intrusive thoughts, avoidance, social discomfort, angry and volatile moods, irritability, pessimistic thinking, and negative beliefs. VA medical records indicate that, throughout the appeal period, the Veteran experienced thoughts of death, but did not have plans or behavior indicative of a high risk of suicide. VA medical records dated from January 2019 to February 2020, obtained pursuant to the October 2019 JMPR, indicate that, while the Veteran attended regular psychiatric treatment and was considered a low risk for suicide, the notes show that the Veteran experienced hopelessness, rage, anger, revenge feelings, anxiety and agitation, which are considered risk factors, and that he had thoughts of death with no plans or intent behavior for suicide. Throughout the appeal period, the Veteran experienced depressive thoughts of death and suicide, despite being found to be low risk for attempts or behavior. Such symptomatology, taken in consideration with his other symptoms of memory loss, chronic sleep impairment, irritability, and anxiety, and pursuant to Bankhead, leads the Board to the conclusion that his service connected unspecified trauma and stressor-related disorder warrants a rating of 70 percent. A total schedular rating is not warranted, as the Veteran is not totally socially impaired. Throughout the appeal period, he has reported a strong relationship with his wife and nephew, as well as an ability to socialize with his sister and at the local veterans’ service organizations. Therefore, a rating of 70 percent, but not higher, is warranted for the Veteran’s service-connected unspecified trauma and stressor-related disorder. REASONS FOR REMAND TDIU The Veteran contends that his service-connected disabilities preclude him from obtaining and maintaining gainful employment. Unfortunately, the evidence of record is not adequate for the Board to make a determination concerning the Veteran’s employability, and a remand is necessary. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, the Veteran meets the schedular criteria for TDIU with a combined rating of at least 70 percent for the entirety of the appeal period. Currently, he is service-connected for unspecified trauma disorder (previously 50%, now 70% throughout the appeal period); type II diabetes mellitus (20%); left lower extremity peripheral neuropathy (10%); and right lower peripheral neuropathy (10%). Service connection has also been granted for sleep apnea (50% from February 2020. The Veteran’s application indicates that he worked as a self-employed plumber from 1972 to 2009, and the record shows that he worked part time for his nephew until 2010. In March 2020, he reported that he was unable to work due to diabetes and peripheral neuropathy. He has a high school education. He also reported that he could no longer work because he was unable to stoop or bend. The record has already established that the Veteran’s memory issues impacted his ability to work as a plumber. However, this evidence alone does not show that the Veteran’s service-connected conditions preclude his from obtaining and maintaining gainful employment. There is no probative examination report of record concerning the Veteran’s diabetes, bilateral lower extremity peripheral neuropathy, and sleep apnea—and their current effect on his ability to work. As such—and in light of the fact that this Board decision grants an increased evaluation of 70 percent for the Veteran’s service-connected psychiatric disorder, the Board finds that a remand of the Veteran’s TDIU claim is necessary to obtain additional information concerning how these service-connected disabilities impact his ability to work. Accordingly, this matter is REMANDED for the following: 1. Obtain any outstanding medical records concerning the Veteran’s service connected abilities. 2. Then, accord the Veteran appropriate examination(s) to determine the effect of his service-connected psychiatric, sleep apnea, diabetes, and bilateral lower extremity peripheral neuropathy disabilities on his ability to obtain and maintain gainful employment. All opinions provided should include adequate rationale. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.