Citation Nr: 21028389 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-10 571 DATE: May 11, 2021 ORDER Entitlement to service connection for bladder cancer, claimed as due to Agent Orange, is granted. Entitlement to a 100 percent for PTSD is granted from May 12, 2014. Entitlement to an increased rating for hearing loss, in excess of 0 percent prior to December 4, 2020 and 10 percent thereafter is denied. Entitlement to an increased rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for hernia, to include as secondary to service-connected disabilities, is remanded. Entitlement to an earlier effective date prior to May 12, 2014 for entitlement to TDIU is remanded. Entitlement to special monthly compensation for aid and attendance or housebound status is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicide agents during active service. 2. In 2021, the National Defense Authorization Act added bladder cancer to VA's list of diseases presumptively associated with exposure to herbicide agents. 3. Throughout the rating period since May 12, 2014, but no earlier, the Veteran's PTSD has been productive of total occupational and social impairment. 4. Prior to December 4, 2020, the Veteran had no worse than Level I hearing acuity of either ear. 5. From December 4, 2020, the Veteran had Level IV hearing acuity in both ears. 6. The Veteran's service-connected tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bladder cancer, claimed as due to Agent Orange have been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a 100 percent disability rating for PTSD, are met throughout the rating period from May 12, 2014. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.156 , 3.302, 3.400, 4.130, Diagnostic Code 9411. 3. Prior to December 4, 2020, the criteria for a compensable rating for hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.85, 4.86, Part 4, Diagnostic Code (DC) 6100. 4. From December 4, 2020, the criteria for a rating in excess of 10 percent for hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.85, 4.86, Part 4, Diagnostic Code (DC) 6100. 5. There is no legal basis for the assignment of a schedular evaluation higher than the current 10 percent for the Veteran's service-connected tinnitus. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1968 to July 1970. This matter was previously remanded for additional development in December 2018 and September 2020. The September 2020 remand directed the AOJ to issue a Statement of the Case regarding the claims for entitlement to an earlier effective date for service connection for PTSD, entitlement to an earlier effective date for service connection for tinnitus, and entitlement to an earlier effective date for service connection for hearing loss. A Statement of the Case was issued in November 2020. The Veteran did not submit a timely substantive appeal as to those issues. Accordingly, as an appeal has not been perfected, the claims for entitlement to an earlier effective date for service connection for PTSD, entitlement to an earlier effective date for service connection for tinnitus, and entitlement to an earlier effective date for service connection for hearing loss are not before the Board. 1. Entitlement to service connection for bladder cancer, claimed as due to Agent Orange Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected, even though there is no record of such disease during service unless the presumption is rebutted. 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307 (d), 3.309(e). The National Defense Authorization Act for Fiscal Year (FY) 2021 (NDAA) was enacted on January 1, 2021 and amended 38 U.S.C. § 1116 (a)(2) to add bladder cancer to the list of presumptive diseases associated with Agent Orange exposure. The Veteran has been diagnosed with bladder cancer and served in Vietnam from June 1969 to July 1970. Thus, he has a present disability and presumed exposure to Agent Orange. Accordingly, service connection is warranted for bladder cancer on a presumptive basis. 38 U.S.C. § 1116 (a)(2). Increased Rating 2. Entitlement to an increased rating in excess of 70 percent for PTSD Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for the disability is disputed, separate or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2008). In other cases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). A 70 percent rating is assigned for PTSD 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 assigned when 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 and place; memory loss for names of close relatives, own occupation or name. 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, 442-3 (2002). However, 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, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Veteran had a VA examination in December 2014. The examiner indicated that the Veteran has occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking, and/or mood. The examination noted that the Veteran had been married twice. He reported that his previous relationships with women ended because of his rage. He had three daughters but had not had contact with them in several years. He reported that he was often homeless, living in abandoned trailers, etc. In 2013, he married his girlfriend of 10 years, and they lived together. He reported that he had "maybe 2 friends." The Veteran reported that he worked as an electrician after service. He was fired from several jobs for fights and "running off customers" with his threatening verbal outbursts. He had not been employed since 1995. The Veteran reported that he is a recluse and avoids people, is depressed and anxious, has a short fuse, and yells and cusses over nothing. He reported one history of a suicide attempt. He reported that he had recurrent suicidal and homicidal ideation. He had a history of arrest for violent behavior. VA treatment records dated in February 2017 reflect that the Veteran was admitted to a VA hospital due to suicidal ideation with intent but no specific plan. He was admitted on a 5150 hold as he represented a danger to himself. A mental status examination two days after his admission showed normal speech, restricted affect, linear thought process, and thoughts of hurting self or others. He did not have auditory or visual hallucinations or delusions. His insight and judgment were noted as improving. The Board finds that the evidence shows total occupational and social impairment due to his psychiatric disorder symptoms throughout the rating period from May 12, 2014. His treatment records reflect that he reported that he was reclusive and avoided social interactions other than with his wife. He had not worked during the appeal period. He was hospitalized in 2017 for psychiatric care, following a determination that he was a threat to himself. Thus, there is evidence indicating that there was a danger of harm to himself due to his psychiatric symptoms. He at times reported recurrent homicidal and suicidal ideation. The above evidence approximates total social and occupational impairment due to such symptoms as impaired impulse control and suicidal ideation. The Veteran has not been employed during the appeal period. Accordingly, the criteria for a 100 percent rating for the Veteran's service-connected PTSD are met for the entire appeal period from May 12, 2014. 3. Entitlement to an increased rating for hearing loss, in excess of 0 percent prior to December 4, 2020 and 10 percent thereafter The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The "puretone threshold average" as used in Table VI is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or Via. 38 C.F.R. § 4.85 (d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The Veteran had a VA examination in December 2014. Testing showed audiometric thresholds of 35, 35, 60, and 70 at frequencies of 1000, 2000, 3000, and 4000 Hertz for the right ear. The Veteran had audiometric thresholds of 40, 35, 55, and 70 at frequencies of 1000, 2000, 3000, and 4000 Hertz for the left ear. There was an average puretone threshold of 50 for both ears. His speech discrimination was 94 percent for both ears. The values correspond with a numeric designation of I for both ears. A non-compensable rating is warranted for those numeric designations. The Veteran had a VA examination in December 2020. Testing showed audiometric thresholds of 45, 60, 60, and 65 at frequencies of 1000, 2000, 3000, and 4000 Hertz for the right ear. The Veteran had audiometric thresholds of 50, 55, 60, and 65 at frequencies of 1000, 2000, 3000, and 4000 Hertz for the left ear. The Veteran had an average puretone threshold of 57.5 for both ears. He had speech discrimination of 80 percent for both ears. A numeric designation of IV is obtained for both ears. A 10 percent rating is warranted for those numeric designations. The Board notes that the Veteran does not exhibit an exceptional pattern of hearing impairment for either ear. See 38 C.F.R. § 4.86. The Board further notes the United States Court of Appeals for Veterans Claims has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In December 2014, he reported that it was difficult to understand people and to understand when on the phone. In December 2020, the Veteran reported that he had difficulty with conversations and TV. The Board finds that the preponderance of the evidence is against the claim for an increased rating for hearing loss. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for an increased rating for hearing loss must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to an increased rating in excess of 10 percent for tinnitus The Veteran seeks a higher rating for tinnitus. In Smith v. Nicholson, the Federal Circuit held that the maximum schedular rating available for tinnitus is 10 percent. Currently, the Veteran's tinnitus is already evaluated as 10 percent disabling. Thus, there is no legal basis upon which to award an increased rating for tinnitus on a schedular basis, and the Veteran's appeal must be denied. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). An extraschedular rating may be provided in exceptional cases. See 38 C.F.R. § 3.321. However, the Board does not find that the Veteran's tinnitus represents an exceptional or unusual disability pattern. Id. A TDIU has been awarded, which encompasses all employment problems due to service-connected disabilities. His tinnitus has not resulted in hospitalizations. As his tinnitus is not unusual or exceptional, the Board finds referral for an extraschedular rating is not appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. The claim for service connection for hypertension was previously remanded for a VA examination regarding the relationship between hypertension and Agent Orange exposure. In December 2020, a VA examiner opined that hypertension is less likely than not related to the Veteran's herbicide exposure in Vietnam. The examiner reasoned that obesity contributes to high blood pressure and noted that the Veteran was diagnosed with hypertension in 2014. The evidence of record is not sufficient to determine whether hypertension is caused or aggravated by his service-connected disabilities. On remand, a VA opinion is necessary as to whether the Veteran's service-connected disabilities cause or aggravate the Veteran's hypertension. 2. Entitlement to service connection for hernia, to include as secondary to service-connected disabilities, is remanded. A January 2014 VA treatment record showed a diagnosis of radical cystoprostatectomy with ileal conduit for bladder cancer, now with parastomal hernia. VA treatment records also reflect a diagnosis of recurrent ventral hernia. See October 2016 VA treatment records. A medical opinion is necessary to determine whether his parastomal and ventral hernias is related to his service-connected disabilities. 3. Entitlement to an earlier effective date prior to May 12, 2014 for entitlement to TDIU is remanded. An April 2015 rating decision granted entitlement to TDIU from May 12, 2014, the date of his claim for TDIU. The claim for an earlier effective date for TDIU is intertwined with his claim for service connection for bladder cancer, granted herein. On remand, the AOJ should effectuate the grant of service connection for bladder cancer and readjudicate the claim for an earlier effective date for TDIU. 4. Entitlement to special monthly compensation for aid and attendance or housebound status is remanded. The September 2020 remand directed the AOJ to obtain a medical opinion in regard to whether, due to his PTSD with major depressive disorder, the Veteran requires the regular aid and attendance of another person or is substantially confined to his dwelling. No medical opinion was obtained. Therefore, a medical opinion must be obtained to comply with the Board's prior remand instructions. The matters are REMANDED for the following action: 1. After effectuating the grant of service connection for bladder cancer, readjudicate the claim for entitlement to an earlier effective date for TDIU. If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. 2. Obtain an addendum opinion regarding the claim for service connection for hypertension. (a) The examiner should provide an opinion as to whether hypertension is at least as likely as not proximately due to service-connected disabilities, including PTSD with major depression, bladder cancer, and prostate cancer. The examiner should provide a detailed rationale for the opinion. (b) The examiner should provide an opinion as to whether hypertension is aggravated beyond its natural progression by service-connected disabilities, including PTSD with major depression, bladder cancer, and prostate cancer. The examiner should provide a detailed rationale for the opinion. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's diagnosed parastomal and ventral hernias are at least as likely as not (a) proximately due to his service-connected prostate cancer and bladder cancer; or (b) aggravated beyond their natural progression by service-connected prostate cancer and bladder cancer. 4. Obtain a medical opinion regarding entitlement to special monthly compensation. The examiner must address the following questions: a. Whether, due to PTSD with major depressive disorder, the Veteran requires the aid and attendance of another person, to include the Veteran being unable to keep himself ordinarily clean and presentable, needing frequent adjustment of any special prosthetic or orthopedic appliances, which by reason of the particular disability cannot be done without such aid, being unable to feed himself or attend to the wants of nature, or experiencing incapacity which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. b. Whether, due to PTSD with major depressive disorder, he is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disabilities and resultant confinement will continue throughout his lifetime. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.