Citation Nr: 21042705 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 14-19 235 DATE: July 13, 2021 ORDER The appeal pertaining to the issue of entitlement to an effective date prior to January 29, 2004, for the award of service connection for coronary artery disease (CAD) is dismissed. A rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing payment of monetary benefits. REMANDED Entitlement to an initial rating in excess of 10 percent for CAD is remanded. Propriety of the assignment of a separate rating for implantation of cardiac pacemaker due to bradycardia, evaluated as 10 percent disabling as of January 29, 2004, is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. At the January 2021 Board of Veterans' Appeals (Board) hearing, prior to the promulgation of a decision, the Veteran withdrew his appeal as to the issue of entitlement to an effective date prior to January 29, 2004, for the award of service connection for CAD. 2. For the entire appeal period, the Veteran's PTSD is manifested by psychiatric symptomatology resulting in occupational and social impairment in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to an effective date prior to January 29, 2004, for the award of service connection for CAD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to August 1969. This matter comes to the Board on appeal from rating decisions issued in September 2011 and May 2015 by a Department of Veterans Affairs (VA) Regional Office. In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the Veteran waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the November 2017 statement of the case and supplemental statement of the case. 38 C.F.R. § 20.1305(c). Further, the undersigned held the record open for 60 days for the submission of additional evidence, and additional 30 day extensions were granted in April and May 2021. The Veteran, through his representative, submitted additional evidence in March, April, and May 2021. 38 U.S.C. § 7105(e)(1). 1. Entitlement to an effective date prior to January 29, 2004, for the award of service connection for CAD. 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. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. At the January 2021 Board hearing, prior to the promulgation of a decision, the Veteran withdrew the appeal pertaining to the issue of entitlement to an effective date prior to January 29, 2004, for the award of service connection for CAD. In this regard, the Board finds that such withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the Veteran. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to such issue. Accordingly, the Board does not have jurisdiction to review the appeal of such issue and it is dismissed. 2. Entitlement to a rating in excess of 50 percent for PTSD. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board begins on January 16, 2015, the date VA received the Veteran's claim for an increased rating for his PTSD, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). In this regard, the Board notes that the Veteran's representative stated at the January 2021 hearing that such claim was filed in December 2013; however, a review of the record reflects that no claim was received that month. Rather, such shows that the Veteran's claim for a TDIU based on PTSD was first received on January 16, 2015. Additionally, his PTSD is rated as 50 percent disabling for the entire appeal period pursuant to DC 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A 50 percent rating 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; impairments of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation 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; intermittently illogical, obscure, or irrelevant speech; 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. Id. A 100 percent evaluation is warranted where 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 or place; memory loss for names of close relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. VazquezClaudio v. Shinseki, 713 F.3d 112, 11617 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the United States Court of Appeals for Veterans Claims (Court) held that the language of the General Rating Formula "indicates that the presence of suicidal ideation alone...may cause occupational and social impairment with deficiencies in most areas." However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran's service-connected psychiatric disability, and their resulting social and occupational impairment. The Board notes that the DSM-5, which, among other things, eliminates GAF scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug. 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018). Turning to the evidence of record, VA treatment records dated through January 2015 reflect the Veteran's reports of nightmares, sleep impairment, and periods of "unprovoked anger" (in reference to work) in connection with his PTSD. There was no evidence or report of suicidal/homicidal ideation or psychosis; his short and long-term memory seemed intact; speech was normal; and he was logical and coherent. However, following his session in January 2015, the Veteran's VA treatment records are devoid of psychiatric treatment. The Veteran was afforded a VA examination in April 2015. At such time, the examiner noted a diagnosis of PTSD, and found that the Veteran had 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 conversation. In this regard, the examiner noted that the Veteran appeared to have a relatively mild case of PTSD, although he reported significant problems with anger that had been problematic in his work environment. Here, the Veteran reported that he left a private employer when his work evaluations continually focused on his problems with anger, and went to work for the county in approximately 2006, but people he worked with at the county informed him that he had problems with anger, though his performance ratings were good. Additionally, the Veteran indicated that he was retired at the age of 67, but felt he may have worked longer were it not for the feedback he was given concerning his problems with anger. The Veteran stated that he is married (44 years), but complained of a relatively superficial relationship with his children and grandchildren. His spouse had been very supportive and tolerant; he was active with his church, teaching Sunday school and preparing religious writings; and had a few close relationships. Here, he noted that he was on good terms with a couple of friends and maintained contact with his children with approximately monthly phone calls. Additionally, the Veteran reported that he remained active through restoring a fishing boat, target shooting, and fishing. His symptoms included depressed mood, anxiety, panic attacks that occurred weekly or less often, 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. The examiner noted that the Veteran was neat and clean, speech was normal, he denied hallucinations and suicidal/homicidal ideation, he was fully orientated and appeared to have adequate memory, his concentration was good, and he had good judgment and insight. In May 2015, G.C., one of the Veteran's former employees, reported that, from 2006 to 2014, the Veteran developed anger issues that manifested in the work place as angry verbal outbursts and the destruction of two cell phones. In June 2019, the Veteran, through his representative, submitted a psychiatric/ psychological impairment questionnaire completed by L.D., APRN-BC. The Veteran's symptoms included memory loss, deficiencies in family relations, persistent irrational fears, deficiencies in mood, difficulty in adapting to stressful circumstances, intrusive recollections of a traumatic experience, deficiencies in work or school, unprovoked hostility and irritability, inability to establish and maintain effective relationships, panic or depression affecting the ability to function independently, appropriately, and effectively, and chronic sleep impairment. L.D. noted that the Veteran's symptoms also included irritable and depressed mood, nightmares, daily anxiety with panic attacks, difficulties with anger, difficulties adapting to change. She further noted that she believed the Veteran's PTSD symptoms significantly impacted his ability to perform gainful employment. At the January 2021 Board hearing, the Veteran testified that he experienced depression, violent nightmares, anger, anxiety, distrust, isolation, occasional suicidal ideation while driving, and an inability to effectively communicate/interact socially with people. He reported that he always sat with his back against the wall to feel in control and safer, experienced crying spells several times a month, and became very angry in a short period of time. In this regard, the Veteran indicated that he had problems with his anger nearly every day. Additionally, he noted that he would wake up in the middle of the night and see someone who was not really there standing in his doorway, which occurred a couple times a month. The Veteran further noted that he had problems with attention and concentration; difficulty with memory, i.e., not remembering where he places things and the names of new acquaintances; and panic attacks two or three times a week. He also indicated that he had one close friend and a strained relationship with his family, but spoke to his sister approximately once a month. He stated that there had been some distress in his marriage. Further, the Veteran stated that he left his previous job due to his anger issues as his colleagues told him that he needed to control his anger. In March 2021, the Veteran underwent a psychological disability examination with a corresponding psychiatric/psychological impairment questionnaire completed by Dr. J.R. Dr. J.R. found that the Veteran's psychological symptoms had presented a moderately-to-markedly negative effect on his ability to perform full-time independent work in a competitive setting; and he had occupational and social impairment with difficulties that affected him in areas such as work, family relations, judgment, thinking, and mood. In this regard, the Veteran reported that he lived with his spouse and was last employed in 2014, but had various difficulties at his job related to anger, argumentativeness with co-workers, and sufficient emotional distress that caused him to resign. Additionally, the Veteran complained of general anxiety and tension, panic attacks, concentration problems, and interpersonal irritability. His speech was normal, clear, and articulated, and thought processes were normal. The Veteran further reported that he experienced visual hallucinations of enemy soldiers at his bedroom door when he woke up from sleep. He did not have any suicidal thoughts or plans, and had no current plans to hurt himself. The Veteran's symptoms included persistent irrational fears, deficiencies in work or school, deficiencies in mood, difficulty in adapting to stressful circumstances, intrusive recollections of a traumatic experience, unprovoked hostility and irritability, and depression affecting the ability to function independently, appropriately, and effectively. Further, the examiner noted that the Veteran had been impaired for an indefinite period by anxiety, depression, hallucinations, flashbacks, unstable mood swings, and interpersonal irritability. Based on the forgoing, the Board resolves all doubt in favor of the Veteran and finds that, for the entire appeal period, he is entitled to a rating of 70 percent, but no higher, for his PTSD as such has resulted in occupational and social impairment in most areas due to symptoms such as a desire to isolate himself, panic attacks, anxiety, suicidal ideation, unprovoked hostility and irritability, deficiencies in mood, near-continuous depression affecting the ability to function independently, appropriately and effectively, difficulty in adapting to stressful circumstances including work or a work like setting, difficulty with attention and concentration, sleep impairment, memory impairment, and difficulty in establishing and maintaining effective work and social relationships. In this regard, the Board acknowledges that the April 2015 VA examiner found that Veteran's PTSD 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 conversation, which is consistent with a 30 percent rating under the General Rating Formula. However, the remainder of the evidence of record, to include the Veteran's reports at such examination, reflect a greater degree of occupational and social impairment. Specifically, at such time, the examiner noted the Veteran's reported impairment in such areas, to include superficial relationships with his children and grandchildren, and leaving jobs due to anger issues, and symptoms of, as relevant, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, which are indicative of a 50 percent rating under the General Rating Formula, and difficulty in adapting to stressful circumstances, including work or a worklike setting, which is indicative of a 70 percent rating under the General Rating Formula. Furthermore, L.D.'s and Dr. J.R.'s assessments were consistent in reporting the Veteran's symptomatology and resulting impairment. However, the Board further finds that the Veteran's does not result in more severe manifestations that more nearly approximate total occupational and social impairment. Specifically, there is no evidence that the Veteran's PTSD results in 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); or disorientation to time or place. Furthermore, the nature, severity, frequency, and duration of the Veteran's PTSD symptoms are not shown to result in total occupational and social impairment. In this regard, while the Veteran has not worked during the appeal period, a fact that will be further addressed in regard to his TDIU claim, he has maintained, albeit strained, relationships with his family as he has been married for over 40 years and occasionally communicated with his sister and children. Additionally, the Veteran reported that he was active with his church, teaching Sunday school and preparing religious writings, and he had a few close friend relationships. He further reported that he remained active through restoring a fishing boat, target shooting, and fishing. Consequently, it cannot be said that the Veteran's PTSD results in total social impairment. Thus, the Board finds that a rating of 70 percent, but no higher, for PTSD is warranted. The Board has also considered whether staged ratings under Hart, supra, are appropriate for such disability; however, the Board finds that the Veteran's symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative has raised any other issues nor have any other issues been reasonably raised by the record in regard to such increased rating claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran's favor, which has resulted in a partial award of an increased rating for his PTSD. However, insofar as the Board has denied a higher rating, the preponderance of the evidence is against such aspects of the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable and such increased rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 3. Entitlement to an initial rating in excess of 10 percent for CAD. 4. Propriety of the assignment of a separate rating for implantation of cardiac pacemaker due to bradycardia, evaluated as 10 percent disabling as of January 29, 2004. The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his CAD and related cardiac pacemaker. In this regard, the Board observes that he was most recently examined by VA in December 2016. However, the Veteran testified to an increase in the severity of such disabilities at his January 2021 Board hearing. Specifically, he indicated that he was unable to walk a great distance, approximately 200-300 feet, and was dependent on his daily medication to keep his heart disability under control. Additionally, he reported that he had to stop about five or six times when mowing his 300 square feet of lawn, became tired and breathing a little heavy after climbing a flight of stairs, and experienced fatigue, tachycardia, and occasional chest pain and atrial fibrillation. Further, private treatment records reflect a left ventricular ejection fraction (LVEF) of 50-55 percent in November 2017 (as compared to 65 percent at the December 2016 VA examination) and the need to replace the generator for his pacemaker in November 2020, which was completed by March 2021. Therefore, as the evidence suggests that the Veteran's CAD and related cardiac pacemaker symptomatology may have increased in severity since the December 2016 VA examination, a remand is necessary in order to afford him an appropriate VA examination so as to assess the current nature and severity of such service-connected disabilities. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Board further notes that the record reflects that the Veteran had a pacemaker implanted during the pendency of the appeal on February 14, 2006, and he has argued that such entitles him to a 100 percent rating for two months following such hospital admission pursuant to Diagnostic Code 7018. 38 C.F.R. § 4.104. Thus, in light of such argument, the AOJ should consider the applicability of such provision in the readjudication of the Veteran's claim. 5. Entitlement to a TDIU. The issue of entitlement to a TDIU is inextricably intertwined with the Veteran's separate and increased rating claims which are remanded herein. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, consideration of his TDIU claim is deferred pending the outcome of such claims. The matters are REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected CAD and related cardiac pacemaker. The record, to include a complete copy of this Remand, must be made available for review in connection with the examination, and all indicated tests and studies should be undertaken. The examiner should describe the nature and severity of all manifestations of the Veteran's CAD and cardiac pacemaker. Specifically, the examiner should assess the Veteran's workload in METs and provide his current LVEF. If a new stress test is contraindicated, and/or interview-based MET data is provided in lieu of a stress test, the examiner should explain why. The examiner should also indicate whether the Veteran's heart disease results in acute or chronic congestive heart failure and, if acute, the frequency of such episodes, or evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. The examiner should further report the frequency of any cardiac arrhythmias. Finally, the examiner should describe the functional impact of the Veteran's CAD and cardiac pacemaker. A rationale should be provided for any opinion offered. 2. In the readjudication of the Veteran's claim regarding the propriety of the separately assigned rating for implantation of cardiac pacemaker due to bradycardia, the AOJ should consider the applicability of the provision of Diagnostic Code 7018 that provides for a100 percent rating for two months following hospital admission for implantation or reimplantation of a cardiac pacemaker in light of the fact that he had a pacemaker implanted during the pendency of the appeal on February 14, 2006. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, 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.