Citation Nr: 21026503 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-12 445 DATE: May 3, 2021 ORDER Entitlement to service connection for chronic kidney disease is granted. Entitlement to a rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted throughout the appeal period. FINDINGS OF FACT 1. The preponderance of the evidence reveals that the Veteran's chronic kidney disease is secondary to the medication taken for his service-connected disabilities. 2. Throughout the appeal, the Veteran's PTSD has been manifested by depressed mood, anxiety, chronic sleep impairment, irritability, difficulty adapting to stressful circumstances, disturbances of motivation and mood, and inability to establish and maintain effective relationships; at no time has the disability been manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic kidney disease have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for a rating of 70 percent, but no higher, for PTSD have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1978 to March 1979, February 2003 to September 2003, and July 2007 to July 2008. The matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. In a June 2020 decision, the Board reopen the claim for service connection for chronic kidney disease and remanded the matter for further development. The Board also remanded the Veteran's claim for an increased rating for PTSD in order to obtain a VA examination. During the pendency of the appeal, a November 2020 rating decision assigned a 70 percent rating for the Veteran's PTSD, effective August 24, 2020. As this increase does not represent a total grant of benefits sought on appeal, the claim for an increased rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that while the agency of original jurisdiction (AOJ) did not furnish the Veteran a supplemental statement of the case (SSOC) regarding his claim for an increased rating for PTSD, the Board finds that the AOJ's failure to do so is harmless error as the issue was adjudicated on the merits in the November 2020 rating decision, and to remand the claim for the issuance of an SSOC would result in unnecessary delay to the Veteran. Accordingly, the Board will address the claim on the merits herein. Moreover, the Board acknowledges that the Veteran's representative has been notified of the docketing of this appeal and had the ability to provide argument on the Veteran's behalf. Lastly, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a TDIU as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran explicitly, unambiguously, and with a full understanding of the consequences withdrew the claim for entitlement to a total rating based on individual unemployability (TDIU) from further appellate consideration during his March 2020 Board hearing. Consequently, the matter was dismissed in a June 2020 Board decision. It has not been re-raised by the evidence subsequent to this dismissal. As a result, the matter is not raised by the record and further discussion of entitlement to a TDIU is unnecessary. Service Connection for Chronic Kidney Disease Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain (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, 1167 (Fed. Cir. 2004). Secondary service connection is warranted where a claimed disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The threshold legal requirements for a successful secondary service connection claim are evidence of (1) a current disability for which secondary service connection is sought; (2) a disability already service-connected; and (3) competent evidence that the already service-connected disability caused or aggravated the disability for which service connection is sought. Id. The Veteran contends that his chronic kidney disease is caused by the medication, to include Motrin, that he took to control symptoms related to his service-connected lumbar strain, degenerative arthritis of the cervical spine, left ankle strain, and bilateral hallux valgus. The Veteran's medical treatment records indicate that he took Motrin, Ibuprofen, and other non-steroidal anti-inflammatory drugs (NSAIDs) for his various service-connected disabilities. A July 2010 VA treatment note indicated that the Veteran's chronic kidney disease is likely due to excessive NSAIDs use. It was noted that he should avoid NSAIDs. An August 2013 treatment record noted that the Veteran had a history of NSAIDs use for 20 years, three to four times a day. At that time, the Veteran's private provider indicated that the Veteran's chronic kidney disease may be due to chronic interstitial disease due to NSAIDs use. An October 2020 VA examiner opined that the Veteran's chronic kidney disease is at least as likely as not proximately due to or the result of his medications taken for his service-connected disabilities. The examiner reasoned that heavy or long-term use of medications, such as Ibuprofen, Naproxen, and higher dose Asprin, can cause chronic kidney disease known as chronic interstitial nephritis. Based on all the available evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for chronic kidney disease is warranted. Here, the October 2020 VA examiner provided a positive nexus opinion, concluding that the Veteran's condition is at least as likely as not proximately due to or the result of his medications taken from his service-connected disabilities. The Board notes that the examiner's opinion is not contradicted by any other competent evidence of record. In sum, the Board finds the evidence to at least be in equipoise as to whether the Veteran's chronic kidney disease is secondary to the medication taken for his service-connected disabilities. Accordingly, the Board must resolve reasonable doubt in the Veteran's favor and finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). Increased Rating for PTSD A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner's assessment of the level of disability at the moment of examination. The rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The Veteran is in receipt of a 30 percent rating for his PTSD prior to August 24, 2020 and a rating of 70 percent thereafter. PTSD, is evaluated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, and is subject to the criteria listed under the General Rating Formula for Mental Disorders. In relevant part, a 70 percent rating is warranted when 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran was afforded a VA examination in August 2016. The examiner opined that the Veteran's PTSD symptoms were sub-threshold and did not appear to cause significant social or occupational impairment. The Veteran reported having an "up and down" relationship with his wife as well as having some friends that he speaks to occasionally. He also reported attending church regularly. The examiner indicated that the Veteran retired in 2015 and was running a tutoring business with his wife. The examiner noted that the symptoms attributable to the Veteran's PTSD include depressed mood, anxiety, and chronic sleep impairment. The examiner opined that the Veteran did not have a diagnosable psychiatric disorder as his PTSD was quiescent. During the March 2020 Board hearing, the Veteran testified having panic attacks two to three times a week. The Veteran's wife testified that he has become angry and confrontational and has circumlocutory speech. She described their martial strain and testified about a specific 2011 incident describing the Veteran's impaired judgment. A May 2020 VA treatment note indicates that the Veteran reported sleep impairment, irritability, poor concentration, anxiety, and isolation/withdrawn. The psychologist noted circumstantial and tangential speech. The Veteran underwent a VA examination in August 2020. The examiner noted that the Veteran has been married for 32 years and retired in 2015. The Veteran reported having a lot of anxiety and marital strain due to his actions. He indicated that he avoids treatment because he does not like talking about his issues as he becomes emotional and has anxiety before sessions. He also stated that after a session he goes into a shell and shuts down for a period of time. The examiner noted that the symptoms attributable to the Veteran's PTSD include depressed mood; anxiety; chronic sleep impairment; panic attacks more than once a week; flattened affect; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or worklike setting; and inability to establish and maintain effective relationships. The examiner noted that the Veteran was capable of managing his financial affairs and that he denied suicidal and homicidal ideations. The examiner further noted that the Veteran was alert and oriented and that his thought processes were linear and coherent. Additionally, the examiner indicated that the Veteran's insight, judgment, and impulse control were within normal limits. The examiner opined that the Veteran's symptoms cause 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. The examiner also opined that based on her observations, the examination presented an accurate representation of the Veteran's past and present functioning. The Board notes that there is considerable variation between August 2020 VA examination and August 2016 VA examination. In this regard, the Board has considered the lay statements of record, and finds that the August 2020 VA examination report more accurately reflects the Veteran's disability picture during the appellate period. Specifically, the August 2020 VA examiner indicated that the examination findings were an accurate representation of the Veteran's past and present functioning. Accordingly, the Board affords the August 2020 VA examination report with more probative value than the August 2016 VA examination. Considering the evidence of record, the Board finds that the Veteran's PTSD manifested in symptoms that more closely approximate the criteria for a 70 percent rating throughout the period on appeal. The Veteran's symptoms include depressed mood, inability to establish and maintain effective relationships, irritability, difficulty adapting to stressful circumstances, panic attacks more than one a week, anxiety, and disturbances of motivation and mood. The evidence of record indicates that the Veteran is withdrawn and isolates himself. Additionally, the Veteran and his spouse have both reported marital strain as well as increased irritability and anger. The preponderance of the evidence is against a finding that a rating in excess of 70 percent is warranted at any point during the appeal period. The Board finds that at no point pertinent to the higher rating claim has the Veteran displayed a total level of psychiatric impairment as indicated by symptoms such as spatial disorientation; gross impairment in thought process or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self and others; disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. These symptoms or other symptoms reflective of total impairment are not shown by the medical and lay evidence of record during this time period. Here, the Veteran's medical records indicate that he has been consistently found to be exhibiting appropriate hygiene and that he is capable of managing his financial affairs. The record is silent as to any reports of active or passive suicidal or homicidal ideation. Additionally, none of the contemporaneous records or VA examination reports reflect any gross impairment in thought processes or communication as the Veteran has been consistently found to be oriented and his thought processes and thought content have been consistently found to be linear and coherent. While the Veteran has reported memory difficulties, there is no allegation or objective finding suggesting that he experienced memory loss for names of close relatives, his own occupation, or his own name. The Board emphasizes that, in analyzing the claim, the symptoms identified in the Rating Formula have been considered not as an exhaustive list of symptoms, but as examples of the type and degree of symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant a higher rating. See Mauerhan, 16 Vet. App. at 442. In sum, the collective evidence supports a finding that the Veteran's PTSD has been characterized by symptomatology which results in no more than occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. Accordingly, the Board finds that a rating of 70 percent, but no higher, for the Veteran's PTSD is warranted for the entire appellate period. 38 U.S.C. § 5107. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, Associate 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.