Citation Nr: 22018633 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 18-28 095 DATE: March 30, 2022 ORDER New and material evidence having been submitted, the request to reopen the claim for service connection for hepatitis C is granted. New and material evidence having been submitted, the request to reopen the claim for service connection for left lower extremity neuropathy is granted. New and material evidence having been submitted, the request to reopen the claim for service connection for right lower extremity neuropathy is granted. Entitlement to a 70 percent rating, but no higher, for post-traumatic stress disorder (PTSD) is granted. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure is granted. REMANDED Entitlement to service connection for hepatitis C, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for left upper extremity neuropathy, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for left lower extremity neuropathy, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for right upper extremity neuropathy, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for right lower extremity neuropathy, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for erectile dysfunction, to include as due to herbicide agent exposure is remanded. Entitlement to a total disability rating based on unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An April 2011 rating decision denied service connection for hepatitis C on the basis that there was no evidence of a nexus to service. The Veteran did not appeal the decision and no new and material evidence was received within a year of the denial. Therefore, the decision became final. 2. Since the April 2011 rating decision, the Veteran testified at the February 2020 Board hearing that his hepatitis C was due to being immunized in service with needle guns and that his blood donations were rejected shortly after returning from service. The evidence is probative and relevant and cures the prior evidentiary defect as it suggests a nexus to service. 3. A March 2015 rating decision denied service connection for left and right lower extremity neuropathy on the basis that there was no current diagnosis or nexus to service. The Veteran did not appeal the decision and no new and material evidence was received within a year of the denial. Therefore, the decision became final. 4. Since the March 2015 rating decision, at the February 2020 hearing the Veteran reported pain in his legs when walking and pain and numbness in his upper extremities, and January 2018 VA treatment records show an evaluation for lower leg pain. The evidence is probative and relevant and cures the prior evidentiary defect as it suggests a current disability. 5. The Veteran's PTSD is characterized by recurrent suicidal ideation, depression, anxiety and feeling on edge, paranoia, anger/irritability, nightmares, panic attacks, chronic sleep impairment, tearfulness, and isolation. 6. The Veteran had physical presence in the Republic of Vietnam during the Vietnam Era. 7. Resolving all doubt in the Veteran's favor, hypertension is due to in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The April 2011 rating decision is final as to the denial of service connection for hepatitis C. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 20.302, 20.1103 (2021). 2. New and material evidence sufficient to reopen the issue of service connection for hepatitis C has been received. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(a) (2021). 3. The March 2015 rating decision is final as to the denial of service connection for left lower extremity peripheral neuropathy. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 20.302, 20.1103 (2021). 4. New and material evidence sufficient to reopen the issue of service connection for left lower extremity peripheral neuropathy has been received. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(a) (2021). 5. The March 2015 rating decision is final as to the denial of service connection for right lower extremity peripheral neuropathy. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 20.302, 20.1103 (2021). 6. New and material evidence sufficient to reopen the issue of service connection for right lower extremity peripheral neuropathy has been received. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(a) (2021). 7. The criteria for a rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with major depressive disorder and panic disorder have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2021). 8. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to April 1970. This matter came before the Board of Veterans Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during a February 2020 hearing. The transcript of the hearing is of record. The Board notes that the Veteran was previously represented, including at the February 2020 hearing, by a private attorney. However, in July 2021 the Veteran executed and submitted a new power of attorney appointing Texas Veteran's Commission as his new representative. The Board notes that the Veteran has a right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person. The record indicates that the Veteran's new representative was contacted in December 2021 and afforded the opportunity to submit argument on the Veteran's behalf. For the reasons stated above, the request to reopen the claim for service connection for hepatitis C and left and right lower extremity neuropathy has been granted. The Board will proceed with the adjudication of the issues in the decision below. 1. Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) The Veteran contends that he is entitled to an increased rating for PTSD, which is currently rated at 50 percent. The Board concludes that a 70 percent rating, but no higher, is warranted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating a disability's severity, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. 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 rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Neither the number of symptoms nor the type of symptoms controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative, and the Board must draw fact-based conclusions as to whether those symptoms, and their severity, frequency, and duration, have caused the level of occupational and social impairment associated with a rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board notes that the presence of suicidal ideation alone conceivably might cause occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. Bankhead, 29 Vet. App. at 19. When the evidence is in approximate balance in the veteran's favor or nearly equal regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021). For the entire period on appeal, the Veteran has been rated under Diagnostic Code (DC) 9411 for PTSD, which is evaluated under the General Rating Formula for Mental Disorders. Under the DC, the criteria for a 50 percent rating are 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. The criteria for a 70 percent rating are 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 work like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are 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 of 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. November 2014 VA treatment records noted symptoms of intrusive thoughts, social withdrawal, depression, tearfulness, and trust issues. The provider found that the Veteran was anxious, depressed, appropriately groomed, and oriented to person, place, and time, with logical, goal-directed thoughts, normal speech, memory within normal limits and no hallucinations. A January 2015 VA examination noted the Veteran's reports of problems keeping his temper and sleeping through the night. He denied suicidal thoughts. The examiner found symptoms of anxiety, suspiciousness, chronic sleep impairment and disturbances of motivation and mood. The examiner found that the Veteran had appropriate grooming, coherent and logical thoughts, congruent affect, no signs of delusions or hallucination and casual dress and noted that he denied suicidal and homicidal ideation. A November 2015 VA examination diagnosed PTSD and found occupational and social impairment with reduced reliability and productivity. The examiner found symptoms of anxiety and chronic sleep impairment and noted the Veteran's reports of hearing voices day and night when it is quiet, distressing dreams of Vietnam, checking doors and locks for security, and feelings of worthlessness. The examiner found that the Veteran had fluent speech, coherent and logical thoughts, congruent affect, and casual dress and noted that he denied suicidal and homicidal ideation. The Veteran submitted a May 2020 private examination that found symptoms of intrusive recollections, hypervigilance, tearfulness, sleep disturbance, irritability, recurrent panic attacks, social withdrawal, irritability/hostility, and feelings of guilt/worthlessness and stated that such symptoms had been present throughout the period on appeal. The Veteran reported paranoid symptoms and such as problems having people come up behind him. The examiner noted reports from the Veteran's wife that he curled into a ball when hearing noises and was easily triggered, throwing things, and yelling. On mental status examination, the Veteran was found to be alert and oriented with depressed mood and congruent affect. Short term memory was found to be fair and immediate memory was 4 out of 4. The Veteran denied hallucinations but reported passive suicidal ideation, including thoughts regarding methods. He denied homicidal ideation. At the outset, the Board finds that the VA examinations and private opinion are adequate for appellate review. There is no evidence that the providers were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the February 2020 Board hearing, the Veteran reported thoughts of self-harm, issues with anger and memory problems such as forgetting where he is going and why. He also reported ongoing symptoms of anxiety and depression. The Board notes that he is competent to report lay observable symptoms that he experiences and assigns his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Upon review of the above, the Board finds that the Veteran' s overall disability picture more nearly approximates the severity required for a 70 percent rating. Significantly, the record shows ongoing suicidal ideation. As noted above, suicidal ideation alone may cause occupational and social impairment in most areas, consistent with a 70 percent rating. While the Veteran frequently denied suicidal ideation during the period, he also submitted competent testimony of thoughts of self-harm at the Board hearing and the May 2020 private examiner also found passive suicidal ideation along with specific thoughts regarding suicide methods, consistent with the Veteran's reports. The record is therefore at least approximately balanced in the Veteran's favor and indicates the presence of recurrent suicidal ideation. The record also shows symptoms of depression, anxiety and hypervigilance, nightmares, paranoia, panic attacks, chronic sleep impairment, and isolation. The May 2020 examiner also found irritability/hostility, noting impulse control issues such as being easily angered to the extent that he threw things and yelled. While the evidence does not show symptoms of obsessional rituals, illogical speech, or spatial disorientation, the Board notes that the symptoms list in the general rating formula are non-exhaustive and finds that the overall severity of the Veteran's symptoms, particularly his recurring suicidal ideation, warrants a 70 percent rating. 38 C.F.R. § 4.7. However, the preponderance of the evidence does not support an evaluation in excess of 70 percent for the period on appeal. The competent evidence of record does not support the conclusion that the Veteran's overall disability picture more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 100 percent disability evaluation based on total occupational and social impairment. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434. That is, the competent evidence of record does not show that the Veteran experiences: gross impairment in thought processes or communication, 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 or memory loss for names of close relatives, own occupation, or own name. As noted above, during the period the Veteran's PTSD was characterized by suicidal ideation, depression, anxiety and feeling on edge, nightmares, panic attacks, irritability/hostility, chronic sleep impairment, and isolation, all of which are encompassed by a 70 percent rating. The evidence shows that the Veteran was consistently found to be well groomed, alert, and oriented, with normal speech and logical and goal directed thoughts. While he has reported some issues with memory such as forgetting where he is going, the record does not show that his memory loss is of a level involving forgetting his own name as contemplated by a 100 percent rating. VA treatment records noted normal memory, the VA examiners did not find any memory impairment, and the May 2020 private examiner found that short term memory was fair, and the Veteran performed well on immediate recall. The record is also silent for any indication of grossly inappropriate behavior or hallucinations. While the Veteran has a history of suicidal ideation, the record shows that he has no history of suicide attempts and his providers frequently either found no current ideation or determined that he was at imminent risk of harming himself. There is also no evidence of homicidal ideation. The Board therefore finds that the evidence does not support the conclusion that the Veteran had persistent danger of hurting himself or others. The Board therefore finds that the evidence of record does not support the conclusion that the Veteran's psychiatric disability caused total social and occupational impairment. The Board has considered the requirement to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board finds that the Veteran's overall picture more nearly approximates that of a 70 percent disability rating, and his symptoms do not more nearly reflect the frequency, severity, and duration of symptoms associated with the 100 percent rating. A rating above 70 percent is therefore not warranted. 2. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure The Veteran contends that his hypertension is related to active service. Granting the benefit of the doubt to the Veteran, the Board concludes that hypertension is at least as likely as not due to the Veteran's presumed herbicide agent exposure in Vietnam and that service connection is therefore warranted. The Veteran had service in the Republic of Vietnam; herbicide exposure is therefore presumed. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). The record shows a hypertension diagnosis and active treatment. Hypertension is not included on the list of diseases presumed to have been incurred in service in Vietnam. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, the Veteran may still be entitled to service connection on a direct basis if the evidence establishes that hypertension is related to herbicide agent exposure. In this regard, the Board notes that in its 2018 Update the National Academy of Sciences (NAS) indicated that there is "sufficient" evidence of an association between hypertension and herbicide agent exposure. The NAS therefore upgraded hypertension from its prior classification in the "limited or suggestive" evidence category to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. See National Academy of Science, Veterans and Agent Orange: Update 11 (2018), http://nationalacademies.org/hmd/ reports/2018/veterans-and-agent-orange-update-2018.aspx (last visited March 1, 2019). There is no other competent evidence of record addressing the relationship between the Veteran's hypertension and his herbicide agent exposure. Moreover, hypertension has not been related to any other risk factors. Therefore, resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for hepatitis C, to include as due to herbicide agent exposure The Veteran has not yet been afforded a VA examination in connection with this issue. August 2020 VA treatment records show active treatment for hepatitis C. Again, the Veteran is a Vietnam Veteran who is presumed exposed to herbicides. Hepatitis C is not included on the list of diseases presumed to have been incurred in service in Vietnam. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, the fact that presumptive service connection is not available is not dispositive of the question of direct service connection, as Veteran may still be entitled to service connection on a direct basis if the evidence establishes that hepatitis C is related to herbicide agent exposure. In addition to his herbicide exposures, the Veteran has submitted testimony at the February 2020 Board hearing regarding inoculation with a needle gun in service, and service treatment records document numerous sexually transmitted disease diagnoses while in service. The record thus contains evidence of a current disability and indicates that the disability may be associated with active service; remand for a VA examination is required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for left upper extremity neuropathy, to include as due to herbicide agent exposure is remanded. 3. Entitlement to service connection for left lower extremity neuropathy, to include as due to herbicide agent exposure is remanded. 4. Entitlement to service connection for right upper extremity neuropathy, to include as due to herbicide agent exposure is remanded. 5. Entitlement to service connection for right upper extremity neuropathy, to include as due to herbicide agent exposure is remanded. The Veteran has not yet been afforded a VA examination regarding his claimed bilateral upper and lower extremity neuropathy issue. While the record does not appear to contain a diagnosis of neuropathy, at the February 2020 hearing the Veteran testified that he has pain and tingling in the bilateral upper extremities and pain in his bilateral lower extremities that he attributes to neuropathy. While, as a layperson, the Veteran is not competent to provide a diagnosis, he is competent to report lay observable symptoms that he experiences. The Board notes that there is a duty to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, and the record indicates that those signs and symptoms may be associated with active service. Here, the Veteran has submitted competent testimony of pain that in all extremities and he is presumed exposed to herbicide agents in service. Remand for a VA examination is therefore required McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In addition, January 2018 VA treatment records include a vascular consult regarding lower extremity pain where the provider noted bilateral lower extremity pain and claudication, worse for the past two years. This raises the question of whether the Veteran's lower extremity pain symptoms may be vascular in nature, as well as neurological. The nature of the Veteran's lower extremity pain disability should therefore be clarified upon remand. 6. Entitlement to service connection for erectile dysfunction, to include as due to herbicide agent exposure is remanded. The Veteran has not yet been afforded a VA examination in connection with this issue. June 2021 VA treatment records show active treatment for erectile dysfunction. Again, the Veteran is a Vietnam Veteran who is presumed exposed to herbicides. Erectile dysfunction is not included on the list of diseases presumed to have been incurred in service in Vietnam. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, as discussed above this is not dispositive of the question of direct service connection. In addition to his herbicide exposures, service treatment records document numerous sexually transmitted disease diagnoses while in service, with symptoms of burning urination and urethral discharge. The record thus contains evidence of a current disability and indicates that the disability may be associated with active service; remand for a VA examination is required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 7. Entitlement to a total disability rating due to unemployability (TDIU) The issue of entitlement to TDIU must also be remanded as it is inextricably intertwined with the remanded issues of service connection. The June 2019 VA 21-8940 specifically stated that the Veteran's hepatitis C and nerve disabilities were among those that affected his ability to work. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when the adjudication of one issue could have "significant impact" on the other issue). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current hepatitis C disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current hepatitis disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service, to include to include his presumed exposure to herbicide agents, his reports of inoculation with a needle gun and the documented episodes of sexually transmitted disease in service. The examiner is advised that the fact that a VA presumption has not been established for a disability is not dispositive of the issue of nexus and consideration must still be given to the exposure. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 2. Schedule the Veteran for an appropriate VA examination, to determine nature and etiology of any current bilateral upper and lower extremity neuropathy or vascular disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current bilateral upper and lower neuropathy or vascular disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service, to include his presumed exposure to herbicide agents. The examiner is advised that the fact that a VA presumption has not been established for a disability is not dispositive of the issue of nexus and consideration must still be given to the exposure. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 3. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current erectile dysfunction disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current erectile dysfunction disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service, to include his presumed exposure to herbicide agents and the documented episodes of sexually transmitted disease in service. The examiner is advised that the fact that a VA presumption has not been established for a disability is not dispositive of the issue of nexus and consideration must still be given to the exposure. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 4. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.