Citation Nr: 21040593 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 17-56 958 DATE: July 6, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and major depressive disorder prior to June 7, 2016 is denied. Entitlement to a 70 percent rating, and not higher, for PTSD and major depressive disorder is granted from June 7, 2016. REMANDED Entitlement to service connection for diabetes mellitus and its complications is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to an initial compensable rating prior to October 26, 2016, and a rating in excess of 50 percent thereafter, for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to June 7, 2016, the Veteran's service-connected PTSD with major depressive disorder did not result in deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. From June 7, 2016, the Veteran's service-connected PTSD with major depressive disorder resulted in deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; it has not resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 50 percent prior to June 7, 2016 for PTSD and major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411-9434. 2. The criteria for entitlement to an initial rating of 70 percent, but not higher, for PTSD and major depressive disorder have been met from June 7, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411-9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1970 to September 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from February 2016, July 2016, and July 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual telehearing in March 2021 before the undersigned Veterans Law Judge. A transcript is associated with the claims file. 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and major depressive disorder prior to June 7, 2016 is denied. 2. Entitlement to a 70 percent rating, and not higher, for PTSD and major depressive disorder is granted from June 7, 2016. Service connection for PTSD was awarded in a July 2016 rating decision. An initial rating of 50 percent was assigned, effective August 3, 2014. In a July 2017 rating decision, the RO increased the rating to 70 percent, effective October 26, 2016. The Veteran expressed disagreement with the effective date of the 70 percent rating, and this matter was included on the subsequent statement of the case. The Board, however, has recharacterized the issue of entitlement to an earlier effective date for the award of the 70 percent rating for PTSD, given that the appeal period in this case begins the day service connection for PTSD was granted (i.e. August 3, 2014). The question of whether the 70 percent is warranted at some point during the appeal period between August 3, 2014 and October 26, 2016, is encompassed in the analysis of whether the criteria for a higher initial rating for PTSD are met. 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. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic of the disease and the disability, therefrom, and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. As in this case, when determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. 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. Fenderson v. Brown, 12 Vet. App. 119, 12627 (1999). Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, if a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's PTSD with major depressive disorder is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9434. An initial 50 percent rating was assigned from August 3, 2014, and a 70 percent rating is in effect from October 26, 2016. The 50 percent evaluation contemplates 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. Id. The 70 percent evaluation contemplates objective evidence demonstrating 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, or 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 the inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted 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; and memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to 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 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Evidence A July 2015 VA psychiatry note indicated that the Veteran had decided to seek treatment for symptoms of anxiety, mild depression, and poor sleep that had plagued him for many years. The Veteran had no history of suicidal ideation, mania, psychosis, or panic attacks. A VA examination was conducted in February 2016. The examiner indicated that the Veteran's service-connected psychiatric disability resulted in 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-car, and conversation. The Veteran reported that he was divorced from his third wife. He stated he had a hard time with intimacy and trust. He blamed experiences in the service for his difficulty managing anger. He was close with his two adult children from his second marriage, as well as his two grandchildren. The Veteran reported that he currently had a girlfriend. They had been dating over a year. He also maintained friends from his recording studio and his high school friends. The Veteran reported that he was currently active in a business venture providing steam machine cleaning services for restaurants. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, including work or a work like setting. On examination, the Veteran was appropriately dressed in casual attire. His speech was spontaneous, with regular rate and volume. He had a broad range of affect. His mood was mildly labile and euthymic. The Veteran was cooperative and pleasant. He seemed to enjoy elaborating on his various careers and successes. He had a goal-directed and linear train of thought. No delusions or hallucinations were present. On VA examination conducted June 7, 2016, the examiner indicated that the Veteran's service connected PTSD and major depressive disorder resulted in 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-car, and conversation. The Veteran reported that he was self-employed in a restaurant steam machine cleaning business. He stated that he was self-employed because he had an inability to work with others. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks three or more times per week, near-continuous depression affecting the ability to function independently, appropriately, or effectively; chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and inability to establish and maintain effective relationships. On examination, the Veteran had normal speech and grooming. There was no evidence of delusions or hallucinations. He was alert and fully oriented. There was no suicidal ideation. On VA examination in August 2016, the examiner noted the Veteran's service-connected psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. The examiner noted symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; panic attacks more than once a week; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. On examination, the Veteran's speech was of normal rate, rhythm and tone. Thought processes were linear and logical. He was well groomed and displayed an irritable and depressed affect and eye contact. The Veteran denied suicidal ideation. The examiner stated that the Veteran's PTSD "remains unchanged with a continuing diagnosis of PTSD. However his symptom have worsened since his last assessment as the claimant reports increased anxiety and depression. He continues to suffer from symptoms consistent with PTSD that include depression, anxiety, hyper vigilance, suspiciousness, anhedonia, disturbing memories, nightmares, flashbacks, irritability, social withdrawal and sleep disturbance consistent with PTSD which are attributable to his in-service experiences. Based upon the examination, the claimant needs to seek follow up treatment. The claimant requires continued medication and treatment." An April 2017 VA psychiatric note indicated that the Veteran denied current suicidal or homicidal ideation, plan or intent. He denied a history of suicide attempts. The Veteran denied current/recent history of violence/dangerousness towards others. He denied psychotic symptoms. On VA examination in June 2017, the examiner stated that the Veteran's service-connected PTSD and major depressive disorder resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner noted symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous depression affecting the ability to function independently, appropriately, or effectively; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. On examination, the Veteran's speech was of normal rate, rhythm and tone. Facial expressions were consistent with content. Thought processes were linear and logical. He was well groomed and displayed appropriate affect and eye contact. there was no suicidal ideation. The examiner stated that the Veteran's symptoms had worsened considerably since his August 2016 examination. He had increased depression that was mostly continuous and impacted most that he does. "As a result, he has developed major depressive disorder which is a progression of his PTSD and is secondary to his PTSD. He continues to suffer from symptoms consistent with PTSD that include depression, anxiety, hyper vigilance, suspiciousness, anhedonia, disturbing memories, nightmares, flashbacks, irritability, social withdrawal consistent with PTSD which are attributable to his in-service experience. There was no history or symptoms associated with schizoaffective disorder. Based upon the examination, the claimant needs to seek follow up treatment. The claimant requires continued medication and treatment." In March 2021, the Veteran testified that his symptoms of anger, irritability, and depression were currently "about the same" as they were in 2015 when he initially sought treatment. Period prior to June 7, 2016 For the period prior to June 7, 2016, the Veteran's service-connected PTSD with major depressive disorder was not shown to result in the type of severe symptoms contemplated by the 70 percent rating criteria. Indeed, the type of symptoms experienced by the Veteran were mainly those that are listed in the criteria for 30 and 50 percent ratings for PTSD. While the Veteran may have experienced deficiencies in several areas as a result of his PTSD, the deficiencies were the result of symptomatology less severe than contemplated by the 70 percent rating criteria. Although the record during this period documented his reported symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, including work or a work like setting, the overall level of impairment was productive of less than that required for a showing of deficiencies in most areas. The February 2016 examiner noted that the Veteran's symptoms resulted in 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-car, and conversation. This is the criteria for a 30 percent evaluation. While the February 2016 examiner checked one symptom indicative of a more significant level of impairment, 'difficulty adapting to stressful circumstances, including work or a work like setting,' the Board notes that the examiner also noted that the Veteran was self-employed, and he also had good relationships with his girlfriend, two children, and several friends. The evidence did not demonstrate that the Veteran's difficulty in adapting to stressful circumstances resulted in deficiencies in most areas, including work, school, family relations, judgment, thinking, or mood. Indeed, he opined that the Veteran's level of occupational and social impairment was best described as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is less severe and infrequent symptomatology than contemplated by a 70 percent rating. The symptoms reported by the Veteran during this period are contemplated in the 50 percent disability rating assigned. The information contained in the February 2016 VA examination does not support an assignment of a 70 percent rating, as it did not reveal that the Veteran was experiencing the severe symptoms contemplated by the 70 percent rating criteria. Significantly, the Veteran did not exhibit illogical, obscure, or irrelevant speech, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, spatial disorientation, poor hygiene, or difficulty in adapting to stressful circumstances. The Veteran had friends and a girlfriend. He denied suicidal ideation. His symptoms were not shown to result in deficiencies in most areas as required for a 70 percent rating. As the evidence fails to demonstrate occupational and social impairment with deficiencies in most areas, a 70 percent rating was not warranted prior to June 7, 2016. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Period from June 7, 2016 From June 7, 2016, the criteria for a 70 percent rating are met. The June 2016 VA examiner noted symptoms of near-continuous depression affecting the ability to function independently, appropriately, or effectively; and inability to establish and maintain effective relationships. The August 2016 examiner noted that the Veteran's symptoms had worsened. The Board finds that the weight of the evidence of record is against finding that the Veteran's PTSD with major depressive disorder has resulted in total occupational impairment at any time during the appeal period. The 70 percent rating warranted since June 7, 2016 is indicative that he has serious impairment in terms of his ability to establish and maintain effective relationships and in terms of his occupational functioning. Regarding occupational functioning, the evidence does not reflect total occupational impairment. The Veteran has claimed entitlement to TDIU; however, he has not attributed his inability to work solely to his service-connected psychiatric disorder, and the evidence of record does not show total occupational impairment due to PTSD with major depressive disorder. The June 2016, August 2016, and June 2017 examiners did not find total occupational impairment. Further, the evidence does not reflect total social impairment. The evidence of record has showed that the Veteran has ongoing relationships with friends and his two adult children. He was noted to have a girlfriend. Thus, the evidence does not reflect total social impairment, which is required for a 100 percent rating, at any time during the appeals period. The Veteran has consistently been shown to be alert and oriented, with no delusions or hallucinations. The VA examinations have not found gross impairment in thought processes or communication, persistent delusions or hallucinations, or disorientation to time or place. In short, the Veteran did not experience the gross distortion of reality (e.g. thought processes or communication, persistent delusions or hallucinations, and disorientation to time or place) described in the criteria for a 100 percent rating at any time during the appeals period. In sum, the evidence fails to reflect that his symptomatology overall more closely approximates the frequency of symptoms and degree of severity that is contemplated by a total rating at any time. Thus, a rating in excess of 70 percent is not warranted at any time. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus and its complications is remanded. 2. Entitlement to service connection for hypertension is remanded. The Veteran seeks service connection for diabetes mellitus, type II, and its complications. He also seeks service connection for hypertension. He asserts that he was exposed to herbicide agents while serving aboard the U.S.S. Lang from September 1970 to September 1971. Additional information is needed before the Board can make a fully informed decision on these service connection claims. Diabetes mellitus, type II, is recognized by VA as a disease for which presumptive service connection is available as due to herbicide exposure. 38 C.F.R. § 3.309 (e). Further, the National Academy of Sciences Institute of Medicine (NAS) upgraded hypertension to the "sufficient" category from "limited or suggestive," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide agent exposure. See November 15, 2018, press release from NAS. A veteran who, during active service, served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, is 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. VA had historically interpreted the statutory phrase "served in the Republic of Vietnam" as incorporating a requirement that the Veteran served on land or inland waterways. In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), the U.S. Court of Appeals for the Federal Circuit held that veterans who "served in the 12 nautical mile territorial sea of the 'Republic of Vietnam' " are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements. There is insufficient evidence of record to determine whether, at any point during his service aboard the U.S.S. Lang, the Veteran is considered to have had qualifying service in the country of Vietnam, pursuant to 3.307(a)(6)(iv); Procopio, 913 F.3d at 1380-81. Accordingly, on remand, the RO should conduct appropriate development (such as obtaining deck logs, ship logs, or any other documents detailing the movements and operations of the U.S.S. Lang during the Veteran's service period) to determine whether the Veteran is considered to have served in the Republic of Vietnam, such that herbicide agent exposure can be presumed. 3. Entitlement to an initial compensable rating prior to October 26, 2016, and a rating in excess of 50 percent thereafter, for bilateral hearing loss is remanded. The Veteran's service-connected bilateral hearing loss is currently assigned a noncompensable rating from August 2014, and a 50 percent rating from October 2016. The record indicates that the Veteran underwent VA audiometric testing in September 2015, however the audiogram results are not included in the claims file. Additionally, the record contains VA audiometric testing in February 2016, June 2016, August 2016, and June 2017, as well as a private audiogram dated in July 2015. There are significant discrepancies in the results, particularly in the speech discrimination scores, between these tests. The file should be reviewed by a VA clinician to reconcile the differences in the test results. 4. Entitlement to TDIU is remanded. As the Board has remanded the claim for increased rating for bilateral hearing loss, adjudication of TDIU is deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Take appropriate steps to attempt determine whether, at any point during the Veteran's service aboard the U.S.S. Lang from September 1970 to September 1971, the vessel was in the 12 nautical mile territorial sea of the 'Republic of Vietnam' based on deck logs, ship logs, or any other documents detailing the movements and operations of the vessel. 2. Obtain the audiogram results from VA audiometric testing of the Veteran in September 2015. 3. Obtain an opinion from an appropriate clinician reconciling the private audiogram from July 2015 and VA audiogram from June 2017 indicating significant hearing loss with the July 2012, September 2015, February 2016, June 2016, and August 2016 VA examinations showing significantly better speech recognition scores. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.