Citation Nr: 21041070 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-24 984 DATE: July 8, 2021 ORDER Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder is denied. REMANDED Entitlement to service connection for erectile dysfunction is remanded. REFERRED Entitlement to service connection for hypothyroidism, to include as secondary to in-service herbicide exposure, is referred to the Agency of Original Jurisdiction (AOJ) for consideration in the first instance. FINDING OF FACT The preponderance of the evidence indicates that the Veteran's PTSD resulted in occupational and social impairment most consistent with reduced reliability and productivity due to symptoms such as: anger and interpersonal issues, chronic sleep impairment, nightmares, depression, anxiety, and hypervigilance. The Veteran was positive for limited instances of suicidal ideation in 2018 but was otherwise negative for suicidal ideation. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with 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 (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1965 to August 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2019, December 2014, and April 2013 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to an increased rating for PTSD was previously before the Board in October 2018. The Board granted an increased rating of 50 percent for PTSD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2019 Order, the Court granted a Joint Motion for Partial Remand. In a March 2020 decision, the Board remanded the issue for additional development. In a February 2021 decision, the Board remanded the issues of entitlement to an increased rating for PTSD and entitlement to service connection for erectile dysfunction (ED) for additional development. The Board finds that the RO substantially complied with the Board's remand directives, the Board may now proceed with adjudication. 1. Entitlement to an initial evaluation in excess of 50 percent for PTSD with depressive disorder The Veteran asserts that his PTSD is more severe than is reflected by his current evaluation. Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a disability with the requirements contained in VA's Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 3.102, 4.3. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a rating of 50 percent is assigned for 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 for 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the United States Court for the Federal Circuit (Federal Circuit) stated 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." The Federal Circuit 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. Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment associated with the DC to determine whether a higher evaluation is warranted. In this case, the Veteran submitted a statement in support of his claim for PTSD in August 2011. The Veteran asserted that he experienced nightmares, aggressive tendencies, and interpersonal problems as a result of his PTSD. In May 2011 VA treatment records the Veteran stated that he would never kill himself, but he often thought he would be better off dead, and he had previously experienced suicidal ideation. In October 2011 VA treatment records, the Veteran reported intrusive thoughts of death and dead bodies. During the Veteran's March 2013 VA examination for PTSD, the VA examiner found that his PTSD resulted in occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stressor symptoms controlled by medication. The Veteran's symptoms included depression, anxiety, hypervigilance, and chronic sleep impairment. During the examination, he presented a euthymic mood and congruent affect. He was alert, cooperative, and tracked the conversation well. He was appropriately groomed, negative for suicidal and homicidal intent, and negative for hallucinations. In October 2013 VA treatment records, the Veteran denied current suicidal ideation, but he stated that he had experienced suicidal ideation previously. April 2014 VA treatment records reflect the Veteran denying suicidal ideation and the assessed severity of his PTSD having decreased. In a December 2014 VA treatment record, the Veteran reported severe sleeping problems and a decline in functioning. In a November 2015 statement in support of his claim, the Veteran asserted that he experienced severe stress, flashbacks, nightmares, interpersonal and social problems, sleep disturbance, hypervigilance, anxiety, and anger. The Veteran asserted that his PTSD made it difficult to seek or obtain work. His PTSD caused him to have difficulty in social situations, and he began avoiding crowds. During the October 2016 VA examinations for PTSD, the VA examiner found that the Veteran's condition 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-care and conversationconsistent with a 30 percent rating. His symptoms included depression, suspiciousness, chronic sleep impairment, and disturbances of mood and motivation. During the examination, he was neatly dressed, easily engaged, and conversed appropriately. He maintained good attention and concentration. October 2018 VA treatment records reflect the Veteran reported suicidal ideation without plans or intent to follow through on his ideation. December 2018 VA treatment records reflect the Veteran being positive for suicidal ideation. Subsequent December 2018 VA treatment records reflect the Veteran being treated for PTSD and negative suicidal ideation. March 2019 VA treatment records reflect increased inability to sleep, depression, and anxiety. The Veteran endorsed thoughts of death without suicidal intent. During the Veteran's April 2021 VA examination for PTSD, his PTSD was found to result 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-care and conversationconsistent with a 50 percent rating. The Veteran's symptoms included anxiety, suspiciousness, chronic sleep impairment, and disturbances of mood and motivation. The Veteran reported occasional nightmares, but his medications were controlling most of his nightmares. He denied any current interrupted sleep. During the examination, he presented a euthymic mood and congruent affect. He was alert, cooperative, and tracked the conversation well. He was appropriately groomed, negative for suicidal and homicidal intent, and negative for hallucinations. The Veteran has consistently asserted that his PTSD is more severe than is reflected by his current evaluation. While the Veteran is competent to observe his PTSD symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his PTSD symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the preponderance of the evidence is against granting an increased rating. The Veteran's VA examinations have consistently found that the occupational and social impairment resulting from his PTSD is consistent with a 50 percent disability rating. The Veteran's symptoms have consistently included, depression, anxiety, hypervigilance, anger and interpersonal issues, nightmares, and chronic sleep impairment. There is evidence of suicidal ideation in October and December 2018. However, the Veteran was negative for suicidal ideation before and after those dates. While he was positive for thoughts concerning death, these thoughts were negative for suicidal intent or plans other than the dates mentioned previously. The Veteran has been negative for other symptoms consistent with a 70 percent rating, such as obsessional rituals, speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression, impaired impulse control, spatial disorientation, and inability to establish and maintain relationships. Based on these facts, the Board finds the preponderance of the evidence indicates that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent disability rating. Accordingly, the claim for an increased rating for PTSD is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notably, the evidence and contentions of record do not suggest that the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has been raised in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has already been granted TDIU, effective August 29, 2016. See February 2021 codesheet. Entitlement to an earlier effective date for the grant of TDIU was denied in a March 2020 Board decision. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction is remanded. The Veteran asserts that his erectile dysfunction arose during or as a result of his active service, including as due to conceded in-service herbicide exposure or as secondary to his service-connected diabetes mellitus. The Veteran is positive for hypothyroidism. See March 2020 VA examination for erectile dysfunction. It is noted that the National Defense Authorization Act for Fiscal Year 2021 (NDAA) added three more conditions to the Agent Orange presumptive-conditions list, including hypothyroidism. The Veteran has presumed herbicide exposure. Accordingly, the Board finds that a claim for service connection for hypothyroidism has been raised by the record and must be referred to the AOJ for adjudication in the first instance. During the Veteran's March 2020 VA examination for erectile dysfunction, the VA examiner noted that he was positive for hypothyroidism, along with other co-morbid conditions, which increased the likelihood of him developing erectile dysfunction. As the claim for service connection for hypothyroidism is referred to the RO for adjudication in the first instance, the Board finds that this claim must be remanded so that the RO can reconsider the claim for service connection for erectile dysfunction, to include as secondary to hypothyroidism. The matters are REMANDED for the following actions: 1. The AOJ should adjudicate the referred and associated claim for service connection for hypothyroidism, to include as secondary to herbicide exposure, in light of the 2021 NDAA adding hypothyroidism to the list of Agent Orange presumptive-conditions list. 2. After completion of the foregoing, the RO should reconsider and readjudicate the claim for service connection for erectile dysfunction, to include as secondary to hypothyroidism. If additional development is deemed necessary, including an additional VA examination, such development should be accomplished prior to readjudicating the erectile dysfunction claim. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.