Citation Nr: 21026424 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-43 811 DATE: May 3, 2021 ORDER An initial 50 percent rating, but no higher, for posttraumatic stress disorder (PTSD), is granted, effective November 29, 2011. A 70 percent rating, but no higher, for PTSD starting from July 22, 2020, is granted. REMANDED The claim of entitlement to service connection for renal cell carcinoma chromophobe type is remanded. The claim of entitlement to service connection for a bladder disability is remanded. The claim of entitlement to service connection for a prostate disability is remanded. The claim of entitlement to service connection for a colon disability is remanded. The claim of entitlement to service connection for a ventral hernia is remanded. The claim of entitlement to service connection for erectile dysfunction is remanded. The claim of entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's PTSD caused social and occupational impairment with reduced reliability and productivity prior to July 22, 2020, at which point the evidence shows his PTSD causes social and occupational impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria are met for an initial 50 percent rating, but no higher, for PTSD, starting from November 29, 2011. The criteria are met for a 70 percent rating, but no higher, starting from July 22, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1, 4.3, 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to January 1970. This appeal is from a February 2013 rating decision. In January 2020, the Board remanded the claims for service connection for renal cell carcinoma chromophobe type, a colon disability, a ventral hernia, and erectile dysfunction, and for an increased rating for PTSD for VA examinations. The development pertaining to PTSD was substantially completed; unfortunately, the service connection claims require additional development, as discussed in the Remand section, below. Also, in January 2020, the Board denied the Veteran's claims for service connection for a prostate disability and for a bladder disability. He appealed those denials to the U.S. Court of Appeals for Veterans Claims, which granted a JMR (Joint Motion for Remand) that vacated those denials and remanded the claims back to the Board for additional consideration. As discussed in the Remand section, below, additional development should be conducted. Finally, the Board notes that the Veteran has raised the issue of TDIU as being related to his "PTSD and other service-connected disabilities." Because it was brought up in conjunction with his claim for an increased rating for PTSD, it is now considered "part and parcel" of that claim. The Board finds that the TDIU claim requires additional development, as discussed in more detail in the Remand section, below. The Board does not find that his PTSD rating requires additional development, or that it is intertwined with his TDIU claim. The record contains records of treatment through early-2020, and the Veteran was provided with an updated VA examination last year. The Board finds the examination report is adequate for examination, as it is based on interview of the Veteran and review of the record. The Veteran has not raised any issues with the July 2020 VA examination report, nor has he asserted that his symptoms have increased since that examination. Accordingly, as no additional development is required by the evidence, the Board finds it appropriately developed and that adjudication on the merits may proceed. 1. An initial 50 percent rating, but no higher, for posttraumatic stress disorder (PTSD) effective November 29, 2011, is granted. 2. A 70 percent rating, but no higher, for PTSD starting from July 22, 2020, is granted. The criteria for evaluating PTSD are found at 38 C.F.R. § 4.130, DC 9411. A 30 percent evaluation 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 evaluation is warranted where there is 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. 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; 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. Id. A 100 percent evaluation requires 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; and, memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). When evaluating a mental disorder, one must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. See 38 C.F.R. § 4.126 (a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). The Veteran's PTSD is rated as initially 30 percent disabling, from the effective date of service connection (November 19, 2011), and then 50 percent disabling from November 27, 2013, under DC 9411. He has appealed for higher ratings. After review of the evidence, the Board finds that an initial 50 percent rating, for the period prior to November 27, 2013, is warranted. The Board finds that his symptoms prior to November 27, 2013, corresponded to the criteria for a 50 percent rating. The July 2012 shows he had anxiety, chronic sleep impairment, flattened affect, and irritability. His sleep quality was noted to be poor, with nightmares, and he was noted to have flashbacks during waking hours. He was noted to have difficulty concentrating, hypervigilance, and an exaggerated startle response. In May 2012, he reported feeling like he was always looking over his shoulder. These symptoms result in impairment with reduced reliability and productivity. The next inquiry is whether a rating higher than 50 percent is warranted at any time during that appeal period. After review of the evidence, the Board finds that a 70 percent rating is warranted starting from July 22, 2020, the date of the most recent VA examination. The examiner noted that his symptoms impact his daily life. The Veteran reported sadness several times per week; episodes of irritability at least ten times per week; and, feeling anxiety, with rapid breathing and throat constriction, every day. He sleeps at most six hours per night and is fatigued most of the time from unrestful sleep. He had panic attacks several times per week. He reported that he has chronic pain that is discouraging and that he thinks of suicide daily upon waking. These symptoms result in deficiencies in most areas. Notably, he thinks of suicide daily. Suicidal ideation alone can support a 70 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Veteran's reports do not contain any details to ascertain the severity of these thoughts, and he has reported no intent or plan. His report appears to indicate that his thoughts are only upon waking, and not all the time. But his death is one of the very first things that crosses his mind every morning, and the Board finds that significant. That, along with his sleep impairment, irritability, depressed mood, and panic attacks, cause deficiencies in the area of thinking, mood, work, and school. The Board does not find that the evidence shows deficiencies in most areas prior to the July 2020 VA examination. The record does not show daily suicidal ideation until the July 2020 VA examination. Prior to that, he mentioned it one time, in July 2017. During a screening at a July 2017 VA treatment appointment, he responded that he had thought of his taking his life in the last few days, and that it was a thought that "comes and goes." He refused further intervention. Thereafter, in September 2018 and a March 2019 screenings, he denied having thoughts of suicide. Prior to July 2017, he denied such thoughts in June 2015, November 2013, and April 2012 screenings. He underwent cognitive therapy in 2015, and did not ever report such thinking. He did not report it, and it was not found, at the July 2012 VA examination. Given the infrequency of his reports prior to July 2020, and the infrequency of his reported symptoms in July 2017, the Board does not find that his suicidal ideation was as significant as it was noted to have become by the July 2020 VA examination. That is, it is factually ascertainable as of the July 2020 VA examination that his suicidal thinking had increased in frequency, and had begun occurring on a daily basis. 38 C.F.R. § 3.400(o). Prior to that, he denied having it most of the time, except for in July 2017, when he did not report that it was a daily and was otherwise vague as to whether such thoughts were common or when they occurred. His July 2017 report is not indicative of impairment rising to the level of a 70 percent rating. Indeed, also, in July 2017, the record also shows he reported that his mood was "stable mostly." He did not have deficiencies in thinking prior to the July 2020 VA examination. As discussed above, he was not preoccupied with his death nor did he have frequent thoughts of death. His VA treatment records do not show any abnormal thinking, or delusional thinking. Rather, his thinking was logical and coherent. The record does not show persistent disturbances in mood prior to the July 2020 VA examination, where he was found to be frequently depressed. Rather, as noted above, the record shows he reported that his mood was mostly stable from July 2017 to March 2020. Prior to that, during his cognitive treatment from June 2015 to December 2015, his mood was regularly euthymic. At the July 2012 VA examination, he was not found to have depressed mood or other disturbances in mood. The available evidence does suggest deficiencies in work and school prior to July 2020. His sleep impairment, daytime fatigue, and trouble concentrating would very likely result in trouble completing tasks or paying attention at work or school. However, the record has not ever shown deficiencies in family relations or judgment, as set forth in the next paragraphs. That is, if he has deficiencies only in the areas of work and school, and not in thinking, mood, family relations, and judgment, then he does not have deficiencies in most areas, which is required for a 70 percent rating. In regard to family relations, the record shows the Veteran and his wife have a stable relationship. She is supportive of him. He reports that he will go out with her and do things that she wants to do, even though he also isolates at times. He is protective of his family, and his hypervigilance causes him to worry about their safety, but there is no indication from the record that his PTSD significantly interferes with his family relationships or prevents him from family obligations. In regard to judgment, the record shows his judgment has consistently found to be fair to good. The record does show that he has angry outbursts. The record shows in 2015, he got very upset at a medical bill from VA, which his therapist was able to discuss with him and help him with his mood. He has reported, most recently in his brief to the Board, that he gets angry at telemarketers. He reports impatience with people that do not know their jobs. However, despite these triggers, he has not ever reacted physically or violently. He has no history of trouble with substances, criminal activity, or other risky behavior. Finally, the last inquiry is whether the record shows total social and occupational impairment at any time during the appeal period. The Board finds it does not. The Veteran is not totally impaired by his PTSD. As mentioned, he is married to his wife for 20 years, and it is a good relationship. He does not exhibit grossly inappropriate behavior, or have gross impairment in thought processes or communication. He has not been found to be a danger to himself or others. He does not have delusions or hallucinations. There is no indication that he has ever been unable to perform activities of daily living. He has not ever been found to be disoriented to time or place, or to have memory loss for the names of close relatives, his own occupation, or his own name. Accordingly, in sum, prior to July 22, 2020, the record does not show impairment with deficiencies in most areas, but it does show impairment with reduced reliability and productivity. A 50 percent rating is warranted from the effective date of service connection, and a 70 percent rating is warranted as of July 22, 2020. REASONS FOR REMAND As a threshold matter, the Board notes the Veteran sees numerous private treatment providers. The most recent private treatment records were received in December 2015. On remand, he shall be given an opportunity to provide updated authorization or records for review. 1. The claim of entitlement to service connection for renal cell carcinoma chromophobe type is remanded. The Veteran has argued that the July 2020 VA examination report is inadequate. He argues that the VA examiner did not list the sources that he reviewed. He further argues that renal cell carcinoma has been linked to arsenic, which is a component in cacodylic acid, which is one of the recognized chemicals contained in the herbicides used in Vietnam, and he cited to medical literature. He argued that TCDD, another recognized chemical, was linked to "all cancers," which would include the Veteran's renal cell carcinoma chromophobe type. See 38 C.F.R. § 3.309(a)(6). He also cited to literature regarding pesticides used in Vietnam that have been found to have delayed health implications. The VA examiner will be directed to review the Veteran's arguments and the cited literature. Further, the July 2020 VA examiner opined that the Veteran was not likely exposed to petroleum via his proximity to a helicopter landing pad. He indicated that the Veteran reported that helicopter fuel dripped on him, but otherwise had no other direct exposure. The examiner did not provide an opinion on whether renal cell carcinoma chromophobe type is as likely as not related to this exposure. 2. The claim of entitlement to service connection for a bladder disability is remanded. 3. The claim of entitlement to service connection for a prostate disability is remanded. This claim was remanded to the Board by the Court for consideration of whether the Veteran's bladder and prostate disabilities are related to herbicide exposure. The Board finds that a VA opinion shall be obtained after review. The Veteran has also argued that his bladder and prostate disabilities are related to the effects of chemotherapy. He has been diagnosed with a fistula of the bladder, incomplete emptying of the bladder, and benign prostatic hypertrophy. The record contains a medical opinion addressing the fistula, but not any of his other disabilities. On remand, this shall also be obtained. 4. The claim of entitlement to service connection for a colon disability is remanded. The July 2020 VA examiner has provided a detailed explanation for his opinion regarding a relationship between the Veteran's colon disabilities. In his opinion regarding whether any colon disability is caused or aggravated by the Veteran's service-connected renal cell carcinoma clear cell type, the VA examiner indicated the kidney is not anatomically located in the abdomen, and therefore did not affect the colon. The Veteran cites to two different medical articles in disputing this statement. A clarified opinion must be obtained. 5. The claim of entitlement to service connection for a ventral hernia is remanded. 6. The claim of entitlement to service connection for erectile dysfunction is remanded. These claims are inextricably intertwined with the above claims. The record shows the ventral hernia is related to the Veteran's colon, for which a clarified medical opinion is required. The record suggests that erectile dysfunction is related to his prostate, for which a medical examination and opinion is being obtained. Accordingly, these claims must also be remanded. 7. The claim of entitlement to a TDIU is remanded. The Veteran has asserted that his PTSD and his other service-connected disabilities preclude him from obtaining and maintaining substantial gainful employment. This claim was filed during the pendency of his claim for an increased rating for PTSD, and is considered a part of that claim, pending since November 29, 2011, the date of receipt of his claim for service connection for PTSD. On remand, this claim should be developed. The matters are REMANDED for the following action: 1. Ask the Veteran for authorization for VA to obtain updated private medical treatment records, or to provide them himself. 2. Obtain updated VA treatment records. 3. Ask the Veteran to complete an Application for Increased Compensation based on Unemployability (VA Form 21-8940). 4. After completion of directives 1 through 3, forward the claims file to an appropriate examiner for an addendum opinion on whether renal cell carcinoma chromophobe type is as likely as not (50/5 probability or greater) related to service. The examiner is asked to review the relevant literature and to provide the citation information for the sources reviewed. The examiner is asked to review the literature cited by the Veteran in the Appellate Brief received April 7, 2021. The Veteran argues that renal cell carcinoma is linked to arsenic, which is a component in cacodylic acid, which is a recognized herbicidal agent. He argued that TCDD, another recognized herbicidal agent, is linked to "all cancers," which would include the Veteran's renal cell carcinoma chromophobe type. He also argues that pesticides used in Vietnam are related to renal cell carcinoma chromophobe type. The Veteran has also argued that he was exposed to other chemicals. He specified petroleum, and that he was exposed via his proximity to the helicopter landing pad while in Vietnam. The July 2020 examiner indicated the Veteran reported that helicopter fuel dripped onto him, but that otherwise being stationed near a helicopter landing pad was not a known risk. The examiner did not provide an opinion on whether such exposure as likely as not resulted in renal cell carcinoma chromophobe type. The examiner is asked to provide an opinion on whether the Veteran's renal cell carcinoma chromophobe type is related to this exposure. All opinions must be supported with explanation. 5. After completion of directives 1 through 3, schedule the Veteran for an appropriate examination for an opinion on whether it is as likely as not (50/50 probability or greater) that any bladder disability is related to service, including to presumed herbicide exposure. The examiner is asked to provide a list of all bladder diagnoses, and to opine on each one. All opinions must be supported with explanation. 6. After completion of directives 1 through 3, schedule the Veteran for an appropriate examination for an opinion on whether it is as likely as not (50/50 probability or greater) that any prostate disability is related to service, including to presumed herbicide exposure. The examiner is asked to provide a list of all prostate disabilities, and to opine on each one. The examiner is asked whether erectile dysfunction is related to any prostate disability. All opinions must be supported with explanation. 7. After completion of directives 1 through 3, obtain a clarification of the July 2020 VA examination opinion that the Veteran's colon disabilities were not caused or aggravated by surgery on the kidneys, because the kidneys are not located in the abdomen. The Veteran has cited to two medical articles that indicate the kidneys are located in the abdomen. The examiner is asked to provide an opinion on whether it is as likely as not (50/50 probability or greater) that any colon disability was caused or aggravated by laparoscopic surgery to remove tumors on the kidney. "Aggravated" means to cause any increase in severity that is not due to the normal progression of the disability, and it need not be permanent in nature. The examiner is asked whether the reopening of a fistula that had resolved would qualify as aggravation. The Veteran's fistula first developed in 2006, and it has been attributed to diverticulitis. It resolved without surgery. It recurred in January 2008 while undergoing chemotherapy for leukemia, and resolved without surgery. All opinions must be supported with explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.