Citation Nr: 21041592 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-04 679 DATE: July 9, 2021 ORDER Entitlement to an earlier effective date for the grant of service connection for posttraumatic stress disorder (PTSD) is dismissed. An initial 70 percent rating for PTSD is granted. Entitlement to service connection for ischemic heart disease (IHD) is denied. REMANDED Entitlement to service connection for valvular heart disease, to include as due to exposure to herbicide and/or as secondary to service-connected PTSD is remanded. Entitlement to service connection for skin condition, to include basal cell carcinoma, dermal fibrosis, chronic rosacea, and/or scattered acne, is remanded. FINDINGS OF FACTS 1. At a videoconference hearing conducted in January 2021, prior to the promulgation of a decision in the present appeal, the Veteran withdrew the appeal of the issue of entitlement to an earlier effective date for the grant of service connection for PTSD. 2. Resolving reasonable doubt in the Veteran's favor, the severity, frequency, and duration of his PTSD symptoms approximate occupational and social impairment with deficiencies in most areas, but do not produce total social and occupational impairment. 3. The Veteran has not been diagnosed with IHD at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria are met for withdrawal of the appeal of the issue of entitlement to an earlier effective date for service-connected PTSD. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial disability rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 3. The criteria for service connection for IHD as secondary to herbicide exposure are not met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to April 1971. The claims are appealed from a November 2016 rating decision. The Veteran filed a Notice of Disagreement (NOD) in February 2017, which resulted in a November 2017 Statement of the Case (SOC). Thereafter, the Veteran filed a substantive appeal in January 2018 and elected a videoconference hearing. The hearing was conducted in January 2021 and the transcript is of record. During the hearing, the Veteran's representative indicated that the Veteran's atrial fibrillation may be secondary to the anxiety caused by his PTSD. See hearing transcript at 24. Moreover, the medical evidence of record reflects different diagnoses for the Veteran's skin condition. Therefore, the Board of Veterans' Appeals (Board) has expanded the claims and recharacterized the issues as reflected above. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. Entitlement to an earlier effective date for the grant of service connection for PTSD is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by a veteran or by his or her authorized representative. 38 C.F.R. § 19.55. In this case, the Veteran withdrew the claim for an earlier effective date for PTSD during the January 2021 hearing. See hearing transcript at 2. The Veterans Law Judge asked the Veteran whether he intended to withdraw the claim, explained the consequences of withdrawing the claim, and asked if he understood the consequences of withdrawing the claim. The Veteran's statement during the hearing satisfies the requirements for the withdrawal of a substantive appeal. DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011); Acree v. O'Rouke, 891 F.3d 1009, 1014-15 (Fed. Cir. 2018). Accordingly, there remain no allegations of errors of fact or law for appellate consideration, and the Board does not have jurisdiction to review the claim for entitlement for earlier effective date for PTSD. The claim is dismissed. 2. An initial 70 percent rating for PTSD is granted. The Veteran is seeking increased rating for his service-connected PTSD. A disability rating is determined by the application of VA's Schedule 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 DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which two evaluations should 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. The Veteran's PTSD is currently assigned a noncompensable rating under DC 9411 from May 4, 2015. Under DC 9411, a 10 percent rating contemplates occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent evaluation contemplates 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, or mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is assigned when a veteran has reduced reliability and productivity due to symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent disability rating is warranted when the veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. A 100 percent disability 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name.38C.F.R. §4.130. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi,16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. Accordingly, the evidence considered in determining the level of impairment is not restricted to the symptoms provided in the DC. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. Therefore, VA must consider all symptoms of a veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-5. Id. In this case, reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, the Board concludes that a 70 percent rating, but no higher, is warranted. The analysis turns on the Veteran's level of occupational and social impairment, primarily whether there are "deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood." To that end, the Veteran testified that he experiences depression frequently, anxiety on daily basis, and chronic sleep impairment. See hearing transcript at 9,18, 22. Moreover, the Veteran endorsed irritability and angry outbursts. See Id. at 11. He testified that he is constantly worried that bad things will happen. See hearing transcript at 21. In addition, a disability benefit questionnaire (DBQ), submitted in May 2019, reflects that he has suspiciousness, flattened affect, and disturbance of motivation and mood. The record also has private psychological evaluation note from a February 2019 examination. During that evaluation, the examiner noted that the Veteran has severe continuous depression and anxiety. Thus, the totality of the evidence of record establishes that the Veteran has mood deficiencies due to his PTSD. The Veteran testified that he self-isolates and avoids interacting with people. See hearing transcript at 6. He reports having no friends and significant difficulty interacting with his son. See February 2019 psychological evaluation note. In fact, outside of his wife, the Veteran does not appear to have any frequent interactions with people. The February 2019 evaluator noted that the Veteran's PTSD significantly "[affects] his ability to maintain social and personal relationships." Accordingly, the evidence shows that the Veteran has deficiencies in the areas of family and interpersonal relations. The evidence also reflects deficiencies in the area of judgment to the extent the Veteran reported multiple angry outbursts on daily basis and physical altercations. See hearing transcript at 12, 17. In addition, the February 2019 examiner found that the Veteran has difficulty with concentration and short-term memory. Id. at 11. Furthermore, the May 2019 DBQ reflects that the Veteran would have difficulty adapting to stressful circumstances, including work or work like setting. In sum, reviewing the evidence in light most favorable to the Veteran and resolving reasonable doubt in his favor, the preponderance of the probative lay and medical evidence shows that the Veteran's PTSD produces deficiencies in the areas of mood, family/interpersonal relationship, and judgment or "most" areas, approximating a level contemplated by a 70 percent disability rating. The evidence, however, does not reflect total occupational and social impairment due to the Veteran's PTSD. To the contrary, the May 2019 DBQ shows that the examiner concluded that the Veteran's PTSD symptoms cause no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran testified that he used his work to manage his PTSD symptoms and he stopped working because of his physical disability. See hearing transcript at 10. He does not contend that he had total occupational impairment. While his irritability and self-isolation affect his relationships as contemplated by the 70 percent rating, the evidence does not show that he has total social impairment. He has maintained his relationship with his wife of 38 years and that his wife is "wonderful" and tolerates his standoffishness and understands. The record reflects serious, but not total, social impairment. The lay and medical evidence of record does not show gross impairment of thought process or communication, delusion or hallucination, inappropriate behavior, danger of hurting self or others and intermittent memory loss, or other symptoms on par with the severity, frequency, or duration of these symptoms. All of the Veteran's PTSD symptoms have been contemplated under the 70 percent or lower rating criteria. Thus, the Board finds that the preponderance of the evidence of record weighs against assignment of a 100 percent rating. 3. Entitlement to service connection for IHD is denied. The Veteran contends that service connection for IHD is warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For veterans, such as this one, who are presumed to have been exposed to herbicide agents, the in-service incurrence and nexus elements are presumptively established for certain diseases, including IHD, listed under 38 C.F.R. § 3.309(e). Therefore, the presence of a current disability is the cornerstone of any service connection claim. Service connection is not warranted when there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Current means near the time a claim is filed or at any time during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007). Disability "refers to the functional impairment of earning capacity." See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain can constitute a current disability, even without an underlying diagnosis, if it causes sufficient functional impairment). In this case, the competent evidence of record does not demonstrate a current diagnosis of IHD. To the contrary, the Veteran underwent a VA examination in September 2016, where the examiner found that he does not have a diagnosis of IHD. Private treatment records and the VA examination of record reflect that the Veteran has valvular heart diseases rather than IHD. Particularly, the private treatment records reflect that the Veteran has aortic aneurysm, aortic stenosis, and atrial fibrillation. Notably, the Veteran has a separate claim for these conditions, addressed in the Remand section below. The medical evidence of record otherwise does not reflect diagnosis of heart condition that constitutes an IHD. The Board has considered the Veteran's lay statement that he has IHD that is related to his exposure to herbicide agents. However, the issue of whether he has IHD is medically complex and requires specialized knowledge and experience, as well as specialized testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). There is no indication that the Veteran has the necessary medical training to properly diagnose himself with IHD. Thus, the Veteran's lay statement is not competent evidence of a current disability, no matter how sincere, and the Board assigns higher probative value to the September 2016 VA examination that found no diagnosis of IHD. Notably, the Veteran's representative submitted an article entitled "Interface Between Valve Disease and Ischemic Heart Disease" that discusses correlation between valvular heart disease and IHD. Thus, the Board has considered whether service connection can be established on secondary basis. However, absent evidence showing that the Veteran has a current disability of IHD, service connection is not warranted either on direct or secondary basis. Nor can service connection be granted on presumptive basis based on the Veteran's exposure to herbicide agents. Therefore, the Board need not discuss the other elements of a service connection claim. Brammer, 3 Vet. App. at 225. The evidence weighs against a finding of a diagnosis of IHD at any time in the appellate period. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. The claim is denied. REASONS FOR REMAND 4. Entitlement to service connection for valvular heart disease, to include as due to exposure to herbicide and/or as secondary to service-connected PTSD is remanded. The Veteran underwent VA examination regarding his heart disability in July 2017. That examiner, however, did not provide an opinion as to whether the Veteran's condition is etiologically related to his exposure to herbicide in service. Moreover, since the July 2017 examination, the Veteran has undergone additional surgeries for thoracic aneurysm and atrial fibrillation. The examination did not specifically address these conditions. Moreover, there is contention that the Veteran's atrial fibrillation is aggravated by his service-connected psychiatric disability. Under these circumstances, the Board concludes a remand to obtain another opinion is necessary before the claim can be adjudicated. 5. Entitlement to service connection for skin condition, to include basal cell carcinoma, dermal fibrosis, chronic rosacea, and/or scattered acne, is remanded. The Veteran underwent a VA skin examination in May 2016, where the examiner concluded that he did not have diagnosis of skin condition. An addendum opinion was obtained in November 2016, where the examiner acknowledged the Veteran's diagnosis of chronic rosacea, scattered acne, and diffuse skin condition, which the examiner concluded are less likely than not related to the carbuncle noted in the Veteran's service treatment records (STRs). The only rationale the examiner offered was a conclusory statement that "[t]hey are all different conditions." The Board finds that the examination is not supported by adequate rationale. Moreover, since the examination, the Veteran has submitted private treatment records that reflect diagnosis of basal cell carcinoma and dermal fibrosis, which were not considered by the examiner. Therefore, a remand is necessary before the claim can be adjudicated. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate VA clinician to obtain a medical opinion regarding the claimed valvular heart diseases. A physical examination is not necessary unless requested by the examiner. (a) After reviewing the claims file in its entirety, identify all valvular heart diseases that have been present at any time since May 2015. (b) For all heart diseases identified the examiner should answer the following: (1) are the Veteran's valvular heart diseases at least as likely as not (a 50 percent or greater probability) related to his military service, to include his exposure to herbicide agents? (2) are the Veteran's valvular heart diseases at least as likely as not (50 percent or greater probability) caused by his PTSD symptoms, particularly anxiety; and (3) Is it at least as likely as not (50 percent or greater probability) that the Veteran's heart diseases are aggravated (worsened beyond their natural progression) by PTSD symptoms, particularly anxiety? The examiner should note that the fact that VA has not included a certain diagnosis on a list of presumptive conditions is not, in and of itself, a sufficient rationale for finding that the condition is not related to service. In other words, the Board needs an opinion as to the likelihood that the particular condition that is diagnosed is related to this Veteran's exposure to herbicide agent, regardless of whether it is on the presumptive list. If the examiner cannot provide the requested opinions without resorting to speculation, please provide the reasons why an opinion would require speculation. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of any skin conditions. The Veteran's claims file must be made available to the examiner for review in connection with the examination. The examiner must take a complete history from the Veteran. (a.) Following the completion of the examination, identify all skin condition that have been present at any time since May 2015. (b.) For all skin conditions identified, the examiner should answer the following: Is the Veteran's skin condition at least as likely as not (a 50 percent or greater probability) related to his military service, to include his exposure to herbicides and/or notation of carbuncle in the STRs? The examiner should note that the fact that VA has not included a certain diagnosis on a list of presumptive conditions is not, in and of itself, a sufficient rationale for finding that the condition is not related to service. In other words, the Board needs an opinion as to the likelihood that the particular condition that is diagnosed is related to this Veteran's exposure to herbicide agent, regardless of whether it is on the presumptive list. If the examiner cannot provide the requested opinion without resorting to speculation, please provide the reasons why an opinion would require speculation. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon 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.