Citation Nr: 21029475 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 04-36 980 DATE: May 13, 2021 ORDER Entitlement to service connection for hypertension, including as secondary to service-connected anxiety neurosis, is denied. Entitlement to a rating higher than 30 percent prior to October 30, 2014, and higher than 50 percent since, for the anxiety neurosis also is denied. FINDINGS OF FACT 1. The most probative evidence is against finding that the Veteran's hypertension is caused or aggravated by his service-connected anxiety neurosis or otherwise related or attributable to his service. 2. Prior to October 30, 2014, at most his anxiety neurosis caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; from that date onwards, at worst, his anxiety neurosis has caused occupational and social impairment with reduced reliability and productivity, but not deficiencies in most areas or total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for hypertension, either as directly or presumptively incurred in service or as secondary to already service-connected anxiety neurosis. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria also are not met for a rating higher than 30 percent prior to October 30, 2014, or higher than 50 percent since, for the anxiety neurosis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1968 to June 1970 and from August 1980 to January 1981. This appeal to the Board of Veterans' Appeals (Board/BVA) originated from an April 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2006, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). A transcript of the proceeding is of record. The Board subsequently denied these claims in November 2006, and the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). Pursuant to a February 2008 Joint Motion for Remand (JMR), the Court vacated the Board's decision denying these claims and remanded them back to the Board for further development and readjudication in compliance with directives specified. In July 2008, August 2016, and June 2018, the Board, in turn, remanded these claims back to the RO (Agency of Original Jurisdiction (AOJ)). In an intervening March 2015 rating decision, on remand, the AOJ increased the rating for the anxiety neurosis from 30 to 50 percent as of October 30, 2014. So, this claim now concerns whether the Veteran was entitled to a rating higher than 30 percent for this mental disorder prior to that date and whether he has been entitled to a rating higher than 50 percent since. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (explaining that the grant of higher rating, but less than maximum possible rating, does not abrogate a pending appeal. Instead, it is presumed a Veteran is seeking the highest possible rating for a disability unless he expressly indicates otherwise.). 1. Entitlement to service connection for hypertension, including as secondary to service-connected anxiety neurosis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain "chronic" diseases, including hypertension, also may be presumed to have been incurred in service if they manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veteran's discharge from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established, as well, on a secondary basis for disability that is proximately due to, the result of, or being aggravated by a service-connected disability. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) indication the current disability was either (a) caused or (b) is being aggravated by the service-connected disability. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his hypertension is owing to his already determined to be service-connected anxiety neurosis so caused or aggravated by it but ultimately the most probative evidence is against this posited correlation. The Veteran was first afforded a VA compensation examination for his hypertension in March 2004. The examiner took three blood pressure readings, which were 140/80 mmHg, 130/82 mmHg, and 130/85 mmHg. Those readings did not meet the definition of hypertension. 38 C.F.R. § 4.104, DC 7101, Note (1). That examiner nonetheless diagnosed arterial hypertension but explained that it had no relationship at all with the Veteran's service-connected anxiety neurosis. The Veteran was next examined for his hypertension in March 2009. He reported first receiving a diagnosis of hypertension in 1980, and he indicated that he resultantly had been taking medication to control his blood pressure. He also reported being hospitalized for his blood pressure for a week either in 2005 or 2006. He said he takes his medication daily, exercises, and keeps a low sodium diet. His blood pressure was 169/115 mmHg. The examiner diagnosed hypertension but, like the prior examiner, concluded it was not related to the Veteran's anxiety neurosis. The examiner explained that, while anxiety and stress can momentarily raise a patient's blood pressure, it will not chronically raise a patient's blood pressure causing hypertension. In a September 2009 addendum the examiner added that the Veteran's hypertension also was not directly caused by or the result of his service. The examiner explained that the Veteran did not meet the diagnostic criteria for hypertension in 1980, as he only had one abnormally high reading followed by a second reading a month later that conversely was within normal limits. According to 38 C.F.R. § 4.104, DC 7101, Note (1), already cited, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The Veteran's earliest treatment and diagnosis of hypertension was not until 1985, some four years after he was discharged from the military, so not during his service or even during the permissible one-year presumptive grace period immediately following conclusion of his service allowing for initial manifestation of this disease. There is no equally or certainly no more probative (competent and credible), medical nexus opinion refuting the VA examiners' unfavorable conclusion of no relationship or correlation between the Veteran's service and service-connected disabilities, especially his anxiety neurosis, and his later diagnosed hypertension. The Board has considered his lay statements and pleadings regarding the origin or cause of his hypertension. But, while he is certainly competent to report on his symptoms, he does not have the competence to ascribe his symptoms to a particular diagnosis and provide a probative opinion regarding their etiology, especially in terms of whether related or attributable to his service or his service-connected disabilities, so including his anxiety neurosis. This determination is outside the realm of his lay competence since the condition at issue is medically complex, not instead merely simple. 38 C.F.R. § 3.159(a)(1) and (a)(2). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). This claim for hypertension, consequently, is denied. 2. Entitlement to a rating higher than 30 percent prior to October 30, 2014, and higher than 50 percent since, for the anxiety neurosis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran's favor. 38 C.F.R. § 4.3. "Staged" ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal, irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999) (initial rating); Hart v. Mansfield, 21 Vet. App. 505 (2007) (established rating). This is precisely what has occurred here ("staging" of the rating) since the Veteran had a 30 percent rating prior to October 30, 2014 and has had a higher 50 percent rating since. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran's anxiety neurosis is rated under DC 9400 of the General Rating Formula for Mental Disorders. DC 9400 provides for a 30 percent rating when there is 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. A 50 percent rating is warranted when 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating 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); 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 use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms listed after that phrase are not intended to constitute an exhaustive list, but rather are to serve as mere examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment). In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that "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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment but shall not assign an evaluation based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. The Veteran first underwent a VA psychiatric examination in March 2004. He reported that he had been employed as a teacher for more than 20 years. He lived with his wife and adult children. He reported some difficulty at work due to his students not progressing academically. He exhibited appropriate personal hygiene and dress. His mood appeared to be anxious, tense, and guarded. He had good attention, fair concentration and memory, clear speech, and good impulse control. He reported occasional inappropriate behavior including aggression and irritability. The examiner diagnosed anxiety disorder with paranoid personality features. The Veteran was reexamined in March 2005. He reported continued employment as a high school English teacher. He had spontaneous speech, good eye contact, and a coherent and logical thought process. He did not have any tics, tremors, abnormal involuntary movements, looseness of association, disorganized speech, delusions, hallucinations, phobias, obsessions, panic attacks, or suicidal ideation. The examiner diagnosed generalized anxiety disorder. The Veteran next had a VA psychiatric examination in September 2010. He reported difficulty sleeping, social withdrawal, and a fear of death. He appeared clean with spontaneous speech with a constricted affect. He reported no problems completing activities of daily living (ADLs). He indicated that he was then currently employed for more than 20 years as a high school teacher. The examiner diagnosed generalized anxiety disorder and indicated the symptoms associated with it were controlled by continuous medication. The examiner added that the Veteran's symptoms did not decrease his work efficiency or ability to perform occupational tasks even during periods of significant stress. Prior to October 30, 2014, the Veteran's anxiety neurosis did not present a disability picture of occupational and social impairment greater than decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is contemplated by the criteria for the 30 percent rating assigned during this initial period at issue. Occupational and social impairment with reduced reliability and productivity was not shown, such as to warrant a higher 50 percent or even greater rating. The Board therefore finds that, prior to October 30, 2014, the symptoms shown support that the Veteran's consequent level of occupational and social impairment was best summarized as due to [only relatively] mild or transient symptoms that decreased work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. Accordingly, a schedular rating exceeding 30 percent was not warranted for this initial period at issue prior to October 30, 2014. The Veteran was more recently examined in April 2019. He reported depressed mood, anxiety, near continuous panic or depression chronic sleep impairment, disturbances of motivation or mood, and circumstantial/circumlocutory/stereotyped speech. He reported sometimes forgetting things and occasional drinking on weekends. He indicated that he had retired from teaching four years earlier, so in 2015 or thereabouts. He said he still lived with his wife. The examiner diagnosed generalized anxiety disorder and neurosis and surmised that it caused occupational and social impairment due to mild or transient symptoms. Thus, since October 30, 2014, the Veteran's anxiety neurosis has been worse commensurate with his greater 50 percent rating since he instead has had occupational and social impairment with reduced reliability and productivity. But at no time during this succeeding period has his anxiety neurosis caused occupational and social impairment with deficiencies in most areas to, in turn, warrant assigning an even higher 70 percent rating and certainly not the total occupational impairment required for a still greater 100 percent rating. While the constellation of symptoms has included impaired memory and mood, he notably has remained able to live independently and care for his personal needs and maintain healthy social relationships with his family, including with his wife. At all times he has been noted to be adequately groomed, correctly oriented (to time, place, person and situation) and has shown appropriate thought processes. He has been found able to fully and independently perform ADLs. In short, occupational and social impairment in most areas simply is not shown and, therefore, a schedular rating greater than 50 percent is not warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.