Citation Nr: 24010294 Decision Date: 03/04/24 Archive Date: 03/04/24 DOCKET NO. 19-28 756 DATE: March 4, 2024 ORDER Entitlement to service connection for a skin disability, to include as chloracne, is granted. Entitlement to an initial rating of 50 percent, but no higher, between March 1, 2017, and August 19, 2019, for post-traumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, his skin disability, to include as chloracne, is related to exposure to herbicide agents during military service. 2. The severity, frequency, and duration of the Veteran's psychiatric symptoms did more closely approximate occupational and social impairment with reduced reliability and productivity between March 1, 2017, and August 19, 2019. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disability, to include as chloracne, due to herbicide exposure, have been met. 38 U.S.C. §§ 101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304. 2. The criteria for a disability rating of 50 percent, but no higher, between March 1, 2017, and August 17, 2019, 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, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1974 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2023 decision, the Board remanded the Veteran's PTSD claim for further development. The Board denied the skin and right ankle disability claims. However, after the parties filed a Joint Motion for Partial Remand, the U.S. Court of Appeals for Veterans Claims remanded the denied claims to the Board. In the Joint Motion, the parties agreed that the Board failed to provide an adequate statement of reasons or bases for its assessment of a private examiner's medical opinion. Additionally, the parties agreed that the Board failed to adequately address whether the duty to assist had been satisfied with respect to obtaining records from the Appellant's time in service. 1. Entitlement to service connection for a skin disability, to include as chloracne The Veteran contends that his various skin disabilities were caused by his exposure to herbicide agents while stationed in Korea. The Board notes that the Veteran has been diagnosed with various skin disorders, evaluated by the RO as chloracne. Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Veterans who served in the Republic of Vietnam during the period starting on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. See 38U.S.C. §1116; 38 C.F.R. § 3.307. Service incurrence for certain diseases will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicide agents. Id. The Department of Defense has also confirmed to VA that Agent Orange was used along the DMZ in Korea from April 1968 to August 1971. Fields of fire between the frontline defensive positions and the south barrier fence were defoliated. The size of the treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the civilian control line. According to the Department of Defense, there was no indication that herbicides were sprayed in the DMZ itself. Herbicides were applied through hand spraying and by hand distribution of pelletized herbicides. Although restrictions were put in place to limit potential for spray drift, run-off, and damage to food crops, records indicate that the effects of spraying were sometimes observed as far as 200 meters down wind. If the veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources for the presumption of service connection for an herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides is established, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. After review of the record, the Board finds that service connection for a skin disability is warranted. As noted, the Veteran has various skin disability diagnoses. As such, the first element of service connection is met. On September 28, 2023, the VA conceded the Veteran's exposure to an herbicide agent in a Toxic Exposure Risk Activity memorandum. As such, the second element of service connection is satisfied. Therefore, the remaining question before the Board is one of medical nexus. Chloracne is one of the diseases subject to presumptive service connection due to exposure to herbicide agents. 38 C.F.R. §§ 3.308, 3.309(e). Because the Veteran was exposed to herbicide agents in service, the presumption is applicable. As such, the third element of service connection has been met. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's skin disability is due to his herbicide agent exposure. Therefore, as all three elements have been met, service connection for skin disability is granted. See?38 U.S.C. § 5107(b);?38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski,?1 Vet. App. 49, 55-56?(1990). 2. Entitlement to an initial rating in excess of 30 percent between March 1, 2017, and August 19, 2019 The Veteran contends that he is entitled to an initial rating in excess of 30 percent. During the pendency of this appeal, the RO assigned a 100 percent evaluation, effective August 20, 2019, the day on which an examination showed the Veteran's symptoms had increased drastically. As such, the Board now considers the period between March 1, 2017, the date on which the Veteran's claim was filed, and August 19, 2019. Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.10, 3.321. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The evaluation of the same disability under several diagnostic codes, so called pyramiding, must be avoided. However, separate ratings may be assigned for distinct disabilities resulting from the same injury as long as the symptomatology for condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38?U.S.C. §?1155; 38?C.F.R. §?4.1. Reasonable doubt as to the degree of the disability will be resolved in the veteran's favor. 38?C.F.R. §?4.3. The General Rating Formula for Mental Disorders at 38?C.F.R. §?4.130 provide the following ratings for psychiatric disabilities, including PTSD: A non-compensable rating is warranted where a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent disability rating is warranted where there is 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 disability rating is warranted where there is 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted when there is 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; difficulty in establishing and maintaining effective work and social relationships. 38?C.F.R. §?4.130, Diagnostic Code 9411. Under the formula, a 70 percent rating 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; 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 worklike setting); inability to establish and maintain effective relationships. 38?C.F.R. §?4.130, Diagnostic Code 9411. A 100 percent rating 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. 38?C.F.R. §?4.130, Diagnostic Code 9411. The United States Court of Appeals for the Federal Circuit held that 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." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, 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.'" Vasquez-Claudio, 713 F.3d at 117-18; 38?C.F.R. §?4.130, Diagnostic Code 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." 38?C.F.R. §?4.126(a). The Board 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 examination." Id. Upon VA examination in April 2018, the examiner diagnosed PTSD and alcohol use disorder. The examiner attributed some of the Veteran's symptoms, including anxiety and nightmares, to PTSD. However, the examiner attributed most of the Veteran's other symptoms to his alcohol use disorder, which the examiner opined was not due to his PTSD. These symptoms included depressed mood, anxiety, chronic sleep impairment, impairment of short-and-long term memory, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Due to the attribution of his symptoms to alcohol use disorder, the examiner found that the Veteran's remaining symptoms due to his PTSD were not severe enough either to interfere with his occupational and social functioning and to require continuous medication. As such, a 0 percent evaluation was assigned. The VA sought an addendum opinion from the examiner to clarify which symptoms were due to the Veteran's PTSD. The examiner restated that the Veteran's alcohol use disorder was the major contributor to his significant symptoms, including memory problems and poor work and social relationships. In the June 2023 remand decision, the Board found the April 2018 VA examiner failed to state an explanation or medical rationale for his conclusion that the Veteran's alcohol use disorder did not stem from his PTSD. Given this, the Board directed the AOJ to obtain an opinion providing a more thorough explanation and rationale. Upon VA examination in June 2023, the VA examiner opined that the Veteran's alcohol use disorder did stem from his PTSD as the alcohol abuse began subsequent to and as an attempt to self-medicate his symptoms of PTSD. As such, in assessing the severity of the Veteran's PTSD, the Board will consider all of the symptoms from the April 2018 VA examination summarized above. Private treatment records from March 2017 show the Veteran reported that he managed his PTSD symptoms through alcohol and prescription drug abuse. His provider stated that he was in need of long-term in-patient care due to the longevity of his symptoms. Private treatment records from April 2017 show the Veteran reported significant psychiatric symptoms, including depressed mood, relationship problems, lack of energy, nightmares during which he hit his wife, social withdrawal, anger, memory problems, insomnia, and irritability. The Veteran reported hypervigilant behavior, such as keeping doors to his front, being ready for a quick departure, and being uncomfortable in crowds. The Veteran reported drinking a fifth of vodka or more each day. Lastly, the Veteran reported that he was going into alcohol rehabilitation due to threats of divorce from his wife. While the Veteran subsequently attended rehabilitation for two months, he was unable to continue due to physical limitations imposed by his other service-connected disabilities. Private treatment records from June 2017 show the Veteran reported a persistent depressed mood during the previous two years. The Veteran reported his mood a 5 on a 10-point scale with 1 being the most severely depressed. The Veteran reported persistent low mood, amotivation, anergia, anxiety, and anhedonia. However, the Veteran's various cognitive functions, including behavior, thinking, insight, and judgment, were noted as normal. After considering the frequency, severity, and duration of the Veteran's psychiatric symptoms during the period on appeal, the Board finds he is entitled to an initial rating of 50 percent, but no higher. While the Veteran demonstrated numerous symptoms associated with such a rating during the period on appeal, the Board finds the Veteran's alcohol use disorder particularly probative in establishing his occupational and social impairment with reduced reliability and productivity. As summarized above, the Veteran has self-medicated with alcohol to the extent that his relationship with his wife was on the verge of collapse during the period on appeal. This self-medication led to a period of rehabilitation cut short by physical limitations caused by his other service-connected disabilities. Furthermore, the Board notes that the Veteran has endured these symptoms for some time as noted in his reports of his persistent depressed mood between 2015 and 2017 and his doctor's report noting the longevity of his symptoms. However, the Veteran is not entitled to a rating in excess of 50 percent. The Veteran does not exhibit symptoms contemplated by those ratings, including suicidal ideation, obsessional rituals, near-continuous panic, or an inability to establish and maintain effective relationships. Regarding the latter, the Veteran has shown difficulty in maintaining his relationship with his wife, but he has demonstrated his ability to compromise and accommodate her in his rehabilitative efforts. Lastly, as the Veteran struggles but does not demonstrate total impairment, he is not entitled to a 100 percent rating. Given the foregoing, the Board finds a rating of 50 percent, but no higher, is warranted and the Veteran's claim is granted. REASONS FOR REMAND Entitlement to service connection for a right ankle disability The Veteran contends that he fractured his right ankle in June 1975. He has provided lay statements corroborating this statement. However, his service treatment records are silent on such an injury. As such, the RO denied his claim based on negative evidence. The Veteran further asserts that his right ankle disability was aggravated by a surgery during his subsequent National Guard service. However, the RO has failed to obtain the Veteran's National Guard records. As these are federal records, it is the responsibility of the VA to make all reasonable efforts to obtain these records. Given this, the Board will remand this matter for further development. The matter is REMANDED for the following action: 1. Make all reasonable efforts to obtain records related to the Veteran's National Guard service. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran and his attorney must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Thereafter, readjudicate the issue on appeal. If any portion of the claim is not granted in full, then issue the Veteran and his attorney a Supplemental Statement of the Case (SSOC) and afford them an adequate opportunity to respond in accordance with all applicable appellate procedures. Leetra J. Harris Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. S. Lofthouse 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.