Citation Nr: 21025413 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-19 015 DATE: April 28, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a rating in excess of 30 percent prior to July 23, 2015, and a rating in excess of 60 percent thereafter for ischemic heart disease (IHD) is remanded. Entitlement to an effective date earlier than September 26, 2016 for the grant of a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to an effective date earlier than September 26, 2016 for the grant of Dependents’ Educational Assistance under 38 U.S.C. Chapter 35 is remanded. FINDING OF FACT The Veteran’s PTSD is manifested by symptoms including depressed mood, anxiety, chronic sleep impairment, mild memory loss, and flattened affect; these symptoms most nearly approximate a 50 percent rating. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1110, 1155 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.130, Diagnostic Code (DC) 9411 (2019).  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to March 1973.  This matter is before the Board of Veterans’ Appeals (Board) on appeal from January 2017, February 2018, and December 2019 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).  The Board issued a prior remand on the IHD claim in March 2018. I. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.   Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.   PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula For Mental Disorders, to include PTSD, 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); and inability to establish and maintain effective relationships.  A 100 percent evaluation is assignable 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.   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. An evaluation shall be assigned 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. See 38 C.F.R. § 4.126 (2019). Furthermore, 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. Id. 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.   The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather 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, 443 (2002). Thus, the Board will consider whether “the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code,” and, if so, the “equivalent rating will be assigned.” Id. The Federal Circuit held previously that a Veteran may only qualify for a given disability rating “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) (“Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the ‘frequency, severity, and duration’ of a Veteran’s symptoms must play an important role in determining his disability level.”).   1. Entitlement to an initial rating in excess of 50 percent for PTSD. The Veteran filed an application for an acquired psychiatric impairment in September 2016. He was given a VA examination for such in January 2017. Here, the examiner diagnosed the Veteran with PTSD-chronic, major depressive disorder-recurrent-moderate, and anxiety disorder-unspecified. The examiner opined that the Veteran’s mental diagnoses resulted in occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran saw a social worker from January 2011 until December 2015 for individual psychotherapy, but he has not had any psychotropic medications, nor any psychiatric in-patient hospitalizations. The examiner listed the Veteran’s symptoms as depressed mood, anxiety, chronic sleep impairment, mild memory loss, and flattened affect. With regard to behavioral observations the examiner noted the Veteran to be alert and oriented to person, place, time, and situation, casually dressed and groomed, and cooperative. The Veteran’s speech was clear and fluent, he had no suicidal or homicidal ideation, his thought processes were linear and goal-directed, and there were no hallucinations or delusions in his thought content. The Veteran was noted to be of average intellect, with a mild memory impairment and good insight and judgement. The examiner opined that the Veteran was capable of managing his financial affairs and found his depression and anxiety to be related to the Veteran’s PTSD. Based on these findings, the RO issued a January 2017 rating decision grating service connection for PTSD with major depressive disorder and anxiety, evaluated at 50 percent, effective September 26, 2016. The Veteran appealed this evaluation up to the Board. A review of the Veteran’s VA treatment records show that he sought anger management training in June 2016 following a physical altercation with an old friend because of rude comments made to the Veteran’s wife. However, there is no evidence that the Veteran actually attended a course for such. The Veteran’s wife wrote a letter regarding the Veteran’s PTSD in June 2014 noting that he suffered from nightmares and yelling and kicking in his sleep. Private treatment records from April 2019 note under “psychiatric/behavioral” that the Veteran denies anxiety, depression, recent stressors, memory loss, or mental illness. Records from July 2019 note under “psychiatric/behavioral” that the Veteran is negative for depression, hallucinations, memory loss, and substance abuse. The Veteran’s most recent VA treatment records show no treatment for his PTSD and consistent denial of suicidal thoughts, potential for violence, insomnia, delusions, hallucinations, or paranoia. Neither the Veteran nor his representative has provided any evidence that the Veteran’s PTSD has worsened since his last VA examination, other than the blanket statement that the currently assigned evaluations of his service connected disabilities “do not accurately depict the current severity of his conditions.” The Board is not persuaded by this argument as it is not at all supported by the evidence of record. As noted above, 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); and inability to establish and maintain effective relationships. The record does not establish that the Veteran suffers from any such symptoms or functional impairment of similar frequency, duration, and severity. Accordingly, entitlement to an initial rating in excess of 50 percent for PTSD is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent prior to July 23, 2015, and a rating in excess of 60 percent thereafter for IHD is remanded. The Veteran initially requested service connection for IHD due to herbicide exposure in December 2012. Along with his application he provided a completed IHD disability benefits questionnaire (DBQ) wherein it was noted that an exercise test had been completed, but that the Veteran gave “suboptimal exercise effort” therefore no workload METs were given. No evidence of cardiac hypertrophy or dilatation was noted, and the Veteran’s left ventricular ejection fraction (LVEF) was found to be at 51 percent on a test completed in September 2010. The Veteran’s DD214 indicates service in Vietnam on or after 5Aug64. VA treatment records show an exercise test completed in January 2011 wherein the Veteran’s METs workload was found to be 7. The Board notes that this is the same exercise test that the Veteran’s physician noted that a suboptimal effort was given on the IHD DBQ. Additional VA treatment records from December 2012 showed the Veteran’s LVEF to be normal at 58 percent and no exercise induced ischemic changes were noted. Based on this evidence, the RO issued an April 2013 rating decision granting service connection for IHD presumed as due to herbicide exposure, with a 10 percent evaluation and an effective date of December 12, 2011, one year prior to his application for service connection. Also, in April 2013, the Veteran was given a VA examination for his IHD. Here, the examiner found that continuous medication was required, but the Veteran did not suffer from congestive heart failure. No evidence of cardiac hypertrophy or cardiac dilatation was found and the Veteran’s LVEF was 53%. Interview-based METs test resulted in a finding of dyspnea and fatigue and a METs workload of >3-5. However, the examiner noted that the Veteran’s METs level limitation was not due solely to his heart condition, but also included his moderately severe, nonservice-connected COPD. The examiner opined that the Veteran’s IHD did not impact his ability to work and under remarks provided “Moderate COPD is responsible to a moderate extent for diminished METs, objectively it cannot be better quantified with current diagnostic studies. Normal EF as well as no evidence of reversible ischemia on MPI suggested a well compensated cardiac function, implying very little current role on METs. There is neither hypertrophy nor dilatation on the heart per MPI which is a more sensitive study per Feb 2013.” The Veteran filed a notice of disagreement with the 10 percent rating for his IHD and appealed the issue up to the Board. He was given another VA examination for his IHD in September 2014. Here, the examiner again found that continuous medication was required, but noted no congestive heart failure, cardiac hypertrophy or cardiac dilatation. Interview-based METs testing resulted in a finding of dyspnea and angina and a METs workload of >3-5. However, this examiner again found that the Veteran’s METs level limitation was not due solely to his heart condition and estimated that only 50% of the METs level limitation was due solely to his heart condition. The examiner listed the Veteran’s other contributing conditions as tobacco use disorder/COPD and hypertension/obesity, both with a 20-25% effect on the Veteran’s METs level, and hypothyroidism. The Board notes that the Veteran is not service connected for any of these additional conditions. The examiner opined that the Veteran’s IHD does not impact his ability to work. Under remarks the examiner noted “The best indicator of cardiac function is his EF of 53% since his estimated METs is affected by his other non-service related comorbidities of: tobacco use disorder, obesity, COPD, etc. Subjective, clinical exam, and objective data do not provided [sic] evidence to support an increase for the claimed cardiac condition.” VA treatment records from July 2015 note an echocardiogram showing an EF of 50%. However, citing to other treatment records, the RO issued a November 2017 rating decision increasing the Veteran’s IHD evaluation to 30 percent beginning March 2, 2017. The RO found that VA treatment records from this date showed left atrial enlargement, entitling him to a 30 percent rating. The Veteran was given another VA examination for his IHD in December 2017. Here, the examiner noted unstable angina diagnosed in March 2017 resulting in a percutaneous coronary intervention, PTCA and stent placement of RCA that same month. The examiner noted continuous medication was required, but no congestive heart failure was found. The examiner also noted cardiac hypertrophy, but no cardiac dilatation. An echocardiogram completed in March 2017 showed an LVEF of 30-35%. Interview-based METs testing resulted in a finding of dyspnea, angina, and dizziness, and a METs level of 1-3, including the Veteran’s other comorbidities. However, the examiner estimated that the Veteran’s METs level due solely to his cardiac condition was >3-5 METs. Finally, the examiner opined that the Veteran’s IHD impacted his ability to work noting that the Veteran “Worked in a factory requiring heavy lifting and temperature can increase in factory. This type of work can indue [sic] chest pain and dyspnea, and runs risk of developing a heart attack. Fatigues easily.” Based on these findings, the RO issued a February 2018 rating decision increasing the Veteran’s IHD evaluation to 60 percent, effective July 23, 2015, the date echocardiogram testing resulted in a finding of a 50% LVEF. In March 2018, the Board remanded the claim to obtain an addendum opinion regarding the Veteran’s METs levels due solely to his IHD prior to July 23, 2015. In September 2018 an addendum opinion was added to the Veteran’s electronic file. The examiner wrote “Review of his medical records shows the Veteran had moderate to severe COPD on pulmonary function testing in 2012. This is a major limiting factor in his functional ability. An echocardiogram 7/23/2015 showed a LVEF of 50% (lower limit of normal) and mild left ventricular dilation. A cardiology note at that time showed; ‘he does not participate in any regular exercise but states that he will walk up and down several flights of steps or multiple city blocks without angina.’ The cardiology evaluation at that time put his METs level at greater than 4. Given that his COPD would have been a major limiting factor, I would estimate his METs level solely from his IND [sic] to be 5-7 prior to July 23, 2015.” Another opinion was received into the electronic file in November 2019. Here, the examiner opined “The Veteran’s LVEF testing renders a more accurate finding regarding cardiovascular manifestations alone. His EF is currently 37%. His EF based on the September 2014 and myocardial perfusion study was 45% which also rendered a more accurate finding regarding cardiovascular manifestations alone. The METs level solely due to his heart condition cannot be rendered without resorting to mere speculation and he has other co-morbidities that have an effect on his METS score.” Based on these opinions, the RO issued a December 2019 rating decision increasing the Veteran’s initial IHD evaluation to 30 percent prior to July 23, 2015 and continuing the rating of 60 percent thereafter. However, the Board notes that VA treatment records from April 2019 note that the Veteran called to inform his PCP that he may have congestive heart failure and was placed on oxygen. VA treatment records from August 2019 lists congestive heart failure on the Veteran’s problem list. As chronic congestive heart failure warrants a 100 percent rating under DC 7005, the Board finds that another remand is warranted to provide the Veteran with another VA examination to determine the current severity of his IHD. 2. Entitlement to an effective date earlier than September 26, 2016 for the grant of a TDIU is remanded. 3. Entitlement to an effective date earlier than September 26, 2016 for the grant of Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is remanded. The issues of entitlement to an earlier effective date for the granting of a TDIU and for the granting of Dependents’ Educational Assistance are inextricably intertwined with the issue of an increased rating for IHD. Accordingly, these issues must be remanded as well.  The matters are REMANDED for the following action: 1. Update the electronic file with any new VA treatment records and private treatment records. 2. Schedule the Veteran for a VA examination to determine the current severity of his IHD. A copy of the Veteran’s entire electronic claims file should be given to the examiner and a note that such was reviewed should be included in his or her report. The examiner should specifically review and consider the Veteran’s most recent treatment records indicating that he has congestive heart failure. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, Associate Attorney 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.