TINNITUS

MATTHEW TENNER · 2020 · Case ID: 20024171

MIXED

Summary

The veteran, who served in the U.S. Army from January 1968 to June 1970, including service in Vietnam, appeals the denial of service connection for tinnitus, skin neoplasm of the neck and chest, and sleep apnea. He also appeals the denial of an earlier effective date for his PTSD rating and seeks an increased rating for PTSD. The Board denied the claims for tinnitus and skin neoplasm, finding no new and material evidence had been submitted since the prior final denials, and that the claims were cumulative and redundant. Service connection for sleep apnea was denied due to the lack of a current diagnosis or any competent medical evidence linking it to service. The Board granted service connection for headaches, finding they were proximately due to or aggravated by his service-connected PTSD, and awarded a 100 percent rating for PTSD, finding total occupational and social impairment based on numerous severe symptoms, including grossly inappropriate behavior, persistent danger to self or others, and memory loss. The claim for an earlier effective date for the PTSD rating was dismissed as moot due to the 100 percent rating being granted for the entire appeal period. The case is remanded for further development on claims for COPD and hypertension, including opinions on secondary service connection to PTSD and headaches, and potential herbicide exposure for COPD. The TDIU and SMC-AA claims are also remanded as they are intertwined with the other remanded issues.

Rationale

No new and material evidence submitted; Evidence cumulative and redundant; Prior evidentiary defect not cured

Service Branch

ARMY

Special Benefit

SMC - AID & ATTENDANCE; TDIU; EARLIER EFFECTIVE DATE

Docket No.

18-43 888

Full Decision Text

Citation Nr: 20024171
Decision Date: 04/08/20 Archive Date: 04/08/20

DOCKET NO. 18-43 888
DATE: April 8, 2020

ORDER

New and material evidence has not been submitted and the claim to reopen service connection for tinnitus is denied.

New and material evidence has not been submitted and the claim to reopen service connection for skin neoplasm of the neck and chest is denied.

Entitlement to service connection for sleep apnea is denied.

Entitlement to service connection for headaches, secondary to service-connected post-traumatic stress disorder with panic and alcohol dependence in remission (PTSD) is granted.

Entitlement to an initial 100 percent rating for PTSD is granted.

Entitlement to an earlier effective date for the grant of a higher evaluation for service-connected PTSD is dismissed.

REMANDED

Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded.

Entitlement to service connection for hypertension is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU), to include consideration of whether special monthly compensation for aid and attendance (SMC-AA) is warranted is remanded.

FINDINGS OF FACT

1. An unappealed March 2008 rating decision denied the Veteran’s claim for service connection for tinnitus. The Veteran was notified of that decision and apprised of his appellate rights. He appealed, by filing a Notice of Disagreement (NOD) in April 2008. In response, VA issued a Statement of the Case (SOC) in February 2009. However, the Veteran did not file a timely substantive appeal (Form 9) within 60 days of the issuance of that decision.

2. An unappealed July 2011 rating decision denied the Veteran’s claim for service connection for skin neoplasm of the neck and chest. The Veteran was notified of that decision and apprised of his appellate rights but did not appeal. There was also no material evidence pertinent to the claims received within one year of the issuance of that decision.

3. The Veteran does not have a diagnosis of sleep apnea.

4. The Veteran’s headaches are proximately due to or aggravated by his service- connected PTSD.

5. For the entire period on appeal, PTSD has been shown to be productive of total occupational and social impairment due to 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; and memory loss for names of close relatives, own occupation, or own name.

6. In light of the grant of 100 percent for PTSD during the appeal, with an effective date of July 13, 2010, there remains to no question of law or fact to decide regarding an earlier effective date for the grant of an increased rating for PTSD.

CONCLUSIONS OF LAW

1. The March 2008 rating decision denying the Veteran’s claim for service connection for tinnitus is final. Evidence received since the March 2008 decision is not new and material, and the claim for service connection for tinnitus is not reopened. 38 U.S.C. § 5108, 7105(d)(3); 38 C.F.R. §§ 3.156, 20.302, 20.1103.

2. The July 2011 rating decision denying the Veteran’s claim for service connection for skin neoplasm of the neck and chest is final. Evidence received since the July 2011 decision is not new and material, and the claim for service connection for skin neoplasm of the neck and chest is not reopened. 38 U.S.C. § 5108, 7105(b); 38 C.F.R. §§ 3.156, 20.302, 20.1103.

3. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

4. The criteria for entitlement to service connection for headaches, as secondary to PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

5. The criteria for an initial rating of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.16, 4.130, DC 9411
.R. §§ 3.102, 3.303, 3.304.

4. The criteria for entitlement to service connection for headaches, as secondary to PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

5. The criteria for an initial rating of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.16, 4.130, DC 9411.

6. The criteria for entitlement to an effective date earlier than February 8, 2016, for the grant of an increased rating for PTSD has been rendered moot by the grant of a 100-percent disability rating for the entire duration of this appeal. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.101 (a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the U.S. Army from January 1968 to June 1970. The Veteran served in the Vietnam War and is highly decorated, receiving a Vietnam Service Medal with three bronze stars and a Vietnam Campaign Medal with 60 device.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2011 and April 2016 rating decisions.

Notably, the Veteran was notified of the decision to grant the Veteran’s claim for PTSD at 30 percent in a July 2011 notification letter. However, no form was provided by the agency of original jurisdiction (AOJ) to the Veteran for the purpose of initiating an appeal. 38 C.F.R. § 20.201(b). In February 2012, the Veteran filed a Statement in Support of Claim requesting an increase in the PTSD rating due to an increase in medication dosages and an increase in the severity of his symptoms that impacts his occupational functioning. He also asserted service connection for COPD due to exposure to herbicide agents in Vietnam. This document was received within a year of the July 2011 rating decision. 38 C.F.R. § 20.302(a). Given that this written communication was from the claimant expressing dissatisfaction or disagreement with the adjudicative determination by the AOJ and expressed a desire to contest the rating, the February 2012 statement must be construed as a Notice of Disagreement relating to the claim for an increased rating for PTSD. 38 C.F.R. § 20.201(b). Therefore, the claims for an increased rating for PTSD and service connection for COPD have been pending since July 13, 2010.

During the pendency of his appeal, the Veteran also filed a claim for a TDIU, which has been incorporated as part of his claim for an increased initial rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009).

Also, it appears that the Veteran desires to file a claim, alleging that the RO committed clear and unmistakable error (CUE) of fact regarding his claim for service connection of PTSD. He was granted service connection for PTSD in a July 2011 rating decision with an effective date of July 13, 2010. However, he had the same or similar symptoms since service and he has filed for service connection for PTSD several times, on at least six occasions, before the claim was ultimately granted in the July 2011 rating decision. Specifically, in an April 2008 NOD, he asserted that he could not understand why the VA could not verify that he served in combat in the Da Nang Vietnam Area and that the experiences and events he went through caused him severe PTSD. He submitted a detailed PTSD questionnaire dated October 31, 2007, providing information as to ambushes coming back to Da Nang on convoy around August 1968 and an accident where corporal R.C.S.’ hand was blown off during an enemy ambush around September 1968. (See April 2008 NOD).

When CUE is alleged with a rating decision, the CUE motion is filed with the RO and first adjudicated by the RO. Each new theory of CUE is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE in a rating decision that has not been adjudicated by the RO in the first instance. Andre v. Principi, 301 F.3d 1354, 136 (Fed. Cir. 2002); Jarell v. Nicholson, 20 Vet. App. 326, 332-33.

Therefore, should he wish
R.C.S.’ hand was blown off during an enemy ambush around September 1968. (See April 2008 NOD).

Therefore, should he wish to file a motion seeking revision of the initial February 2004 rating decision that denied service connection for PTSD, he should file the appropriate form(s) for a CUE motion. The RO is directed to provide the appropriate form(s) to assist the Veteran in the furtherance of his claim.

New and Material Evidence

1. New and material evidence has not been submitted and the claim to reopen service connection for tinnitus is denied.

2. New and material evidence has not been submitted and the claim to reopen service connection for skin neoplasm of the neck and chest is denied.

Issues 1-2: Generally, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.

New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000).

In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

In considering these claims, the Board considered whether the Veteran has new or distinct diagnoses as per the Federal Circuit’s guidance in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008). However, as the Veteran’s diagnoses pertaining to tinnitus and skin neoplasm of the neck and chest have been unchanged since the last final denials, Boggs does not apply.

As for the claim of tinnitus, in a March 2008 rating decision, the RO denied service connection. The evidence consisted of statements from the Veteran, service treatment records (STRs), military personnel records, and VA treatment records. In the decision, the RO denied service connection on the basis that tinnitus did not incur in service. His STRs did not show evidence of treatment for, or complaints of, or diagnosis of any tinnitus. There was no evidence he incurred hazardous noise during service. He was a supply clerk and a cook. At an October 2007 VA examination, the Veteran reported having ringing in both ears over the past couple of years, many years after leaving service.

The Veteran was notified of that decision and was apprised of his appellate rights. He elected to appeal, filing a NOD in April 2008. Military personnel records were added in July and August 2008. In response, the RO issued a SOC in February 2009. However, the Veteran did not file a timely substantive appeal (Form 9) within 60 days of the issuance of that decision; and no new or material evidence was added to the record. He also did not raise a motion to revise that decision based on CUE as to
and a cook. At an October 2007 VA examination, the Veteran reported having ringing in both ears over the past couple of years, many years after leaving service.

The Veteran was notified of that decision and was apprised of his appellate rights. He elected to appeal, filing a NOD in April 2008. Military personnel records were added in July and August 2008. In response, the RO issued a SOC in February 2009. However, the Veteran did not file a timely substantive appeal (Form 9) within 60 days of the issuance of that decision; and no new or material evidence was added to the record. He also did not raise a motion to revise that decision based on CUE as to the issue of tinnitus. The March 2008 decision is therefore final as to the evidence then of record and is not subject to revision on the same factual basis.

The evidence received since the last final March 2008 decision includes statements from the Veteran, lay statements from his former girlfriend, VA treatment records, and VA examination reports. These records, however, do not contain any discussion indicating an in-service incurrence of tinnitus nor etiology or onset of the Veteran’s tinnitus. The basis for the prior denial was the lack of probative evidence establishing the in-service incurrence of tinnitus. The prior evidentiary defect has not been cured, nor has it triggered VA’s duty to provide further assistance. The Board acknowledges that the RO obtained two additional copies of the Veteran’s DD 214 (Certificate of Release or Discharge from Active Duty) in February 2016; however, these records were already associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). Therefore, the evidence submitted is cumulative and redundant of that already of record when the claim was denied in March 2008.

As for the claim for skin neoplasm of the neck and chest, in a July 2011 rating decision the RO denied service connection. The evidence consisted of statements from the Veteran, lay statements from his former girlfriend, STRs, military personnel records, and VA treatment records. In the decision, the RO denied service connection on the basis that skin neoplasm of the neck and chest did not incur in service. His STRs did not show treatment for, or complaints of, or diagnosis of skin problems nor were any noted on his separation exam. VA treatment records show that in March 2008 he complained of skin tags on his neck and chest, [benign skin neoplasms], which he wanted removed because they interfered with shaving. They were removed without complications. In a July 2010 letter, the VA asked the Veteran to submit evidence showing skin neoplasm existed from his military service to the present. No evidence was received.

The Board acknowledges that the RO did not directly address the Veteran’s theory that entitlement of presumption; that skin neoplasm of the neck and chest should be presumed as service-connected due to exposures to herbicide agents during his service in Vietnam. However, benign skin neoplasm is not one of the conditions specifically enumerated in VA regulations as being a disease associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e). The RO took the proper steps to assist the Veteran in developing the claim by asking him to submit additional evidence, to include a medical opinion, that his benign skin neoplasm of the neck and chest were etiologically related to service. Therefore, the Board finds the lack of specificity is no more than harmless error as there was no reasonable basis to grant service connection otherwise.

Most importantly, the Veteran was notified of that decision and of his appellate rights but did not initiate a timely appeal of the July 2011 rating decision as to skin neoplasms of the neck and chest or raise a motion to revise that decision based on CUE. Moreover, there was no material evidence received pertinent to the issue within one year of the issuance of the decision. The July 2011 decision is therefore final as to the evidence then of record and is not subject to revision on the same factual basis.

The evidence received since the last final July 2011 decision includes statements from the Veteran, lay statements from his former girlfriend, VA treatment records, and VA examination reports. These records, however, do not contain any discussion concerning an in-service incurrence of a skin disease or the etiology of his skin neoplasm of the neck or chest. The basis for the prior denial was the lack of probative evidence establishing an in-service incurrence of skin neoplasm of the neck and chest or any skin disease. The claim was also denied on the basis that there was no evidence to show the condition was caused by service. The prior evidentiary defect has not been cured, nor has it triggered VA’s duty to provide
factual basis.

In sum, additional evidence received since the March 2008 and July 2011 rating decisions do not relate to an unestablished fact necessary to substantiate the claims, nor does it raise a reasonable possibility of substantiating the claims. The benefit-of-the-doubt doctrine is not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (the benefit-of-the-doubt doctrine is not applicable to applications to reopen a claim unless the threshold burden of submitting new and material evidence has been met). The claims for service connection are not reopened.

Service Connection

3. Entitlement to service connection for sleep apnea is denied.

The Veteran asserts service connection for sleep apnea as a result of his military service. (See July 2016 Notice of Disagreement/Election DRO Process).

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

The Board finds no basis upon which to award service connection for sleep apnea. There is no competent medical evidence to suggest the claimed disorder exists, let alone is in any way related to service. No medical professional, private or VA, has diagnosed the Veteran with sleep apnea. The Veteran requested a sleep apnea evaluation in October 2014. However, none has been conducted to date. Without a current diagnosis, there is no basis for which a claim can be granted.

4. Entitlement to service connection for headaches, secondary to service-connected PTSD is granted.

The Veteran asserts that he experiences headaches secondary to his service- connected PTSD.

In April 2019, the Veteran’s girlfriend also submitted a written lay statement regarding headaches and his psychiatric symptoms. She stated that the Veteran experiences a lot of headaches. He does not handle stress well at all and she believes the stress he stays under does not help.

Service connection is also warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432(1997).

The evidence of record reflects a history of complaints for headaches, sometimes attributed to his PTSD symptoms.

For instance, in a November 2003 VA examination for psychiatric conditions, the Veteran complained of experiencing headaches.

February 2006 VA records reflects the Veteran sought treatment at an emergency room for headaches. He was treated with narcotics and it was resolved.

A September 2007 VA examination for herbicide agent exposure reflects the Veteran complained of experiencing ongoing headaches.

At his June 2011 PTSD VA examination, he described his mood as “lousy,” which he attributed to having a headache and experiencing pain.

November 2011 VA records reflects the Veteran sought mental health individual psychotherapy where he complained of continuing to struggle with physical illness and increased anxiety. He discussed unemployability. He discussed physical symptoms to include blurred vision, dizziness, headaches, fatigue, numbness in legs and feet and tingling. The psychiatrist noted the Veteran had elevated A1C levels (diabetes).

November 2015 VA records reflect that the Veteran complained of experiencing headaches due to PTSD and sinuses.

October 2018 VA
examination for herbicide agent exposure reflects the Veteran complained of experiencing ongoing headaches.

At his June 2011 PTSD VA examination, he described his mood as “lousy,” which he attributed to having a headache and experiencing pain.

November 2015 VA records reflect that the Veteran complained of experiencing headaches due to PTSD and sinuses.

October 2018 VA records reflect that the Veteran has headaches as a part of his withdrawal symptoms from narcotic pain medication.

In February 2019, the Veteran submitted a Disability Benefits Questionnaire (DBQ) completed by a private physician, Dr. M.B, who noted that she reviewed the claim file, medical records and conducted an interview with the Veteran on February 13, 2019. Dr. M.B. diagnosed the Veteran with tension headaches. The Veteran reported that he suffers 1-2 prostrating headaches of tension headache pain a week accompanied with sensitivity to light and sound, disturbed concentration and dizziness. These prostrating attacks last anywhere from a few hours, up to the entire day in duration and require the Veteran to lay down in a dark room for headache relief. He rated his headache pain at 7-8/10 in severity. He reported that he takes over-the-counter medications.

On examination, Dr. M.B. noted that his head pain occurred on both sides of the head and worsens with physical activity. The non-headache symptoms associated with headache are nausea, sensitivity to light, sensitivity and sound, disturbed concentration and dizziness. The typical duration of his head pain is less than one day. She opined that he does not have migraine headaches, but does have non-migraine headache pain, more frequently than once per month. He has very frequent prostrating and prolonged attacks of non-migraine headache pain.

She opined the Veterans’ service-connected PTSD is as likely as not has aided in the development of and permanently aggravates his tension headaches. She opined his headache conditions impact his ability to work in that he suffers from prostrating attacks of headache pain accompanied with light and sound sensitivity and reduced power of concentration. He reported when his PTSD is bothering him, he becomes stressed out and this brings on a headache. She noted that mental health treatment records dated March 18, 2016, June 27, 2018, and July 27, 2018 of his psychiatric symptomatology. She also noted that medical research states that patients with mental health conditions are more likely to develop headaches because pain and mood are regulated by the same part of the brain. She concluded it is well established that mental disorders both cause and aggravate headaches. She attached a treatise from ResearchGate entitled “Mood and anxiety disorders in chronic headache.” She also completed an SSA residual functional capacity evaluation where she opined that he would miss work, leave early from the workplace, and would have trouble with concentration, three or more days per month. He would not be able to stay focused for at least 7 hours of an 8-hour workday.

Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current headaches are proximately due to or aggravated beyond their natural progression by his service-connected PTSD.

The Board notes that the Veteran’s headaches have been attributed to his service-connected PTSD as well as non-service-connected conditions. Nevertheless, the Board will attribute all current head pain symptoms as due to service-connected PTSD in accordance with VA regulations. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant’s favor and the symptoms in question attributed to the service-connected disability).

Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for headaches secondary to service-connected PTSD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Increased Rating

5. Entitlement to an initial 100 percent rating for PTSD is granted.

The Veteran contends that he is entitled to the maximum disability rating for his service-connected PTSD for the entire period on appeal due to increase medication dosage and increase in symptoms severity that impacts occupational functioning. (See February 2012 Statement in Support of Claim).

Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to
service-connected disability).

Increased Rating

5. Entitlement to an initial 100 percent rating for PTSD is granted.

Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

The veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1 ; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Hart v. Mansfield, 21 Vet. App. 505 (2007).

It is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claim file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran was awarded service connection for PTSD in a July 2011 rating decision and was assigned a 30 percent rating effective July 13, 2010. The 30 percent rating was continued in rating decisions of May 2013 and September 2013. In an April 2016 rating decision, the rating was increased to 70 percent as of February 8, 2016. The Veteran’s PTSD is rated under DC 9411, which is part of the General Rating Formula for Mental Disorders found in 38 C.F.R. § 4.130.

Under that formula, a 30 percent evaluation is warranted when the disorder is manifested by 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 normal conversation) due to symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events).

A 50 percent evaluation is warranted when the disorder is manifested by 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 for example, retention of only highly learned material, forgetting
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 normal conversation) due to symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events).

A 50 percent evaluation is warranted when the disorder is manifested by 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 for example, 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.

A 70 percent evaluation is warranted where the disorder is manifested by 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 that is 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; and an inability to establish and maintain effective relationships.

A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name.

Additionally, the Board acknowledges that the United States Court of Appeals for Veterans Claims has interpreted the language of §4.130 to indicate that “the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” Bankhead v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 435, *19 (U.S. App. Vet. Cl. Mar. 27, 2017). The Court further explained that where recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration manifest over the course of the mental health disorder, both active and passive suicidal ideation may be interpreted as a “persistent danger of hurting self,” which is language associated with 100 percent disability rating criteria for total occupational and social impairment. Id. at 21.

When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Symptoms listed in the General Rating Formula serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. They are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). Rather, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22; 38 C.F.R. § 4.130. A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114 (Fed. Cir. 2013).

The Board finds that the preponderance of the evidence supports an initial 100 percent rating for PTSD as the Veteran’s PTSD has been shown to be productive of total occupational and social impairment due to such symptoms as 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; and memory loss for names of close relatives, own occupation, or own name.

Post-service VA records reflect extensive treatment for a variety of psychiatric disorders, including PTSD, major depressive disorder, and anxiety/panic disorder.

A June 200
seki, 713 F.3d 112, 114 (Fed. Cir. 2013).

Post-service VA records reflect extensive treatment for a variety of psychiatric disorders, including PTSD, major depressive disorder, and anxiety/panic disorder.

A June 2004 mental health intake & assessment indicates the Veteran reported having problems with anger, especially related to what he saw and experienced in Vietnam. He reported being irritable, tosses and turns frequently at night, has intrusive thoughts, anxiety, avoid movies/TV programs about combat/war, startles easily, experiences discomfort in crowds, is hypervigilant, is unable to sit with his back to a door, and reports depression and guilt related to killing in combat. He reported having symptoms of PTSD since the 1970s but kept using alcohol and drugs to address the pain. He was a heroin addict in Vietnam and struggled with addiction for several years to cope with PTSD symptoms. He was convicted of assault while under the influence of alcohol and spent 15 years in prison. However, he had not used alcohol in the last 8 years. He also reported a singular in-patient psychiatric treatment in 1984, completing a 6-month program for PTSD and substance abuse. He was screened for PTSD and depression, which returned positive indicating PTSD and serious depression.

He consistently sought mental health individual counseling through the VA. For example, August 2004 notes reflects a diagnosis of PTSD and a history of childhood sexual abuse in addition to combat related PTSD symptoms. He reported hyper-arousal (irritability, angry outbursts, feeling on edge, sleep disturbance), anxiety, depression, nightmares and intrusive thoughts. The VA doctor noted he needed medication management to stabilize mood/sleep pattern and 1:1 therapy for patient/family education, for stress/anger management, and increased coping skills. As for his depression, he complained of decreased sleeping, increased irritability, poor concentration, decreased pleasure and decreased energy. As for his anxiety/panic disorder, he reported he had panic attacks 3-4 times per week but had never been treated for them.

February 2005 VA records he sought treatment for increased psychiatric symptoms as a result of stress. He stated he was much more irritable with his wife/family and was isolative. He was not interacting as much with others, even at work.

January 2005 VA records he reported having no interest in activities he used to find pleasurable, has no sex drive, no “pizazz” and has low energy and little motivation. He stated if he is awaked suddenly, he gets up almost in a rage. He stated he is more irritable with his wife and other family members and has no social life. He stated he could not tolerate fireworks. On examination, his judgment and insight were appropriate. His recent and remote memory were intact. His mood was euthymic, and affect was appropriate. His personality was non-hostile, pleasant and cooperative.

On September 2005 VA examination, He reported an extensive substance abuse history. He reported that about six to seven months after arriving in Vietnam he started using heroin; it would help him fight the monotony and the pressures of being in Vietnam, as it was hard to deal with his situation, He stopped using it when he came home from Vietnam. He started drinking for the very first time at age 14 but he did not abuse alcohol until after Vietnam. He was up to a case of beer a day with 1⁄2 to one pint of whiskey or Scotch. He had 8 DUI’s. He stopped drinking in October 1997. He never went to AA meetings, but he did have 6-months of substance abuse and PTSD treatment at the Denver VA in 1984. Those records were not available at that time. He was waiting to go to a PTSD day program. He had never had a suicide attempt, and this is the first time he had been on psychiatric medications.

He reported he was the product of an affair. As a result, he was given to family friends when he was 10 days old. There was some physical and emotional abuse by his adoptive parents, but the biggest trauma was that he was sexually abused by his adoptive father’s brother from the ages of 4 until 15. He told his adoptive family, but they did not believe him. He began running, away and he had legal problems. He did not have a relationship with ‘his adoptive family after running away, but he later” met his biological father in his late 40’s and he had a relationship with his dad. The veteran was in prison from age 22 to 37. He was drinking heavily with two women and there was some type of fight. He denied that he assaulted them, but he was convicted of assault. He did not serve his full sentence as he got paroled early. He was married for the first time for eight years, and his wife died when he was 28 years old. He had two daughters that were raised by the maternal grandmother, and now he has a good relationship with his daughters who live in Texas. He was raising an 11-year-old grandson and he had been with his second wife for 5 years. He was married for the second time since 2000. He and his wife, along with the 11-year-old grandson, live in a rented house in Pueblo. She was understanding of his posttraumatic stress disorder as he was very isolated, and he spends a lot of time in his room watching fictional things such as cartoons because he hates watching the news or things involving the war in Iraq.

On exam, the examiner noted his affect was somewhat anxious, his speech was non- pressured, and his thought process was linear, and goal directed. He reported his mood. as being “lousy” and he reported that he has been depressed for years. His sleep was poor, consisting of 4 hours of broken sleep as little things wake him up at night. His energy was low, and his appetite varied. He reported that he was moody, and he did not have a social life because he was so isolated, His concentration and short-term memory were poor. He denied symptoms of anhedonia. He denied suicidal ideation and homicidal ideation. He denied any history of psychotic symptoms, including no auditory or visual hallucinations or paranoid ideation. He reported that he had not drank since 1997. He reported that the alcohol would suppress his nightmares and decrease his anxiety in terms of memories from Vietnam. In terms of posttraumatic stress disorder symptoms, he had nightmares 3 to 4 times a week about Vietnam, He had daytime trauma memories when he had “idle time,” but they were not daily. When he had the memories, he felt sad and they were at least a few times a week. He has had flashback episodes in the past. He avoided people, places and feelings as well as conversations about Vietnam. He had an increased startle reflex, hypervigilance, and mild sleep problems with concentration difficulties.

The examiner opined that both his PTSD and major depressive disorder were the result of his military service. He also opined that the Veteran’s alcohol dependence and opiate abuse were at least as likely as not the result of his military service. Both were in full remission.

However, the evidence suggests that the Veteran symptoms significantly worsened.

July 2007 VA records reflect the Veteran underwent a 16-day PTSD Residential Rehabilitation Program (PRRP). He declined psychotropic medications. Although he was motivated, VA doctors noted his PTSD remained severe at discharge. The VA physician opined the Veteran was on Social Security Disability Income SSDI and was unemployable upon entering the PTSD program. The VA doctor opined his employability status has no changed as a result of the hospitalization.

A November 2007 letter from mental health therapist, Ms. K.C. noted that the Veteran reported moderate to severe symptoms of PTSD, such as sleep disturbance with episodic nightmares, irritability, feeling anxious, being on edge, being hyper vigilant, isolative and avoidant and experiencing intrusive thoughts. He was scheduled for a medication evaluation with the team psychiatrist. She opined he has been unable to maintain or return to employment secondary to medical problems and PTSD.

The Veteran continued with mental health individual counseling and medication management through May 2008. At the May 2008 therapy session, the Veteran reported increased symptoms in recent months. He was experiencing significant stressors related to financial problems, marital conflict, and increased, anger/irritability related to his denial for a, PTSD Sc disability claim. He needed continued therapy to help him cope more effectively and for patient/family education regarding PTSD (coping skills, stress/anger management, and communication). He was also in need of continued medication management and medical follow up as recommended per his primary care provider. There is no recent report or history of suicidal/homicidal ideation/intent.

It appears that the Veteran ceased seeking treatment for a three years period, until April 2011, where he was seen by mental health medication management complaining that all his PTSD remained active. He agreed to continue bupropion.

On a April 2011 prescription note, his clinical social worker, Mr. J.C., opined that the Veteran has total and permanent disability.

On VA examination in June 2011, the Veteran reported a similar personal and medical history. He reported that he completed the 9th grade and then worked for his dad in farming and doing field work. He discussed more details of his criminal history, stating that he was imprisoned after getting into a fight and beat up three other individuals with a baseball bat. He stated he became angry with them after they stole money from him, and he was intoxicated. While incarcerated, he beat up his cellmate and was informed that he had symptoms of PTSD, but he was told that he would have to deal with it after he was released from prison. He was subsequently assigned to a cell by himself. He reported that after he was released from prison he worked for his biological father’s custodial business until 1991. He moved to Pueblo Colorado in 1992 and worked for the Comanche Power Plant as a custodian and then a supervisor until 2007. He reported that he sustained a back injury on the job and has been totally disabled since 2007 and unable to work.

He has been prescribed Bupropion. He reported that he sees his psychiatrist once a month and his therapist once a month as well. He indicated the treatment has been helpful. The Veteran denied suicidal or homicidal tendencies. He has been involved in a relationship with a girlfriend for the past three years.

As for activities of daily living, he reported that he enjoyed spending time with his girlfriend’s family. He stated he attended church regularly, which he indicated helps him cope. He reported that he is trying to learn how to live life like he should have, and he enjoyed being around positive people. He indicated his spiritual walk is important to him and has helped him with overcoming his alcohol problem. The Veteran reported that he lost his home in the foreclosure in 2008. He was renting a house and his girlfriend was helping him learn how to manage his finances. He also reported that enjoyed reading in his spare time.

On examination, the Veteran was appropriately dressed and in clean clothes. He required the use of oxygen, and the Veteran was small in stature. The examiner noted his attitude was cooperative and he appeared to provide a genuine report. He did not exhibit any unusual movements or psychomotor changes. He spoke with an accent, but his speech was within normal limits. His affect appeared for the most part euthymic, but he did exhibit some occasional dysphoria when talking about some of his life circumstances. The Veteran described his mood as “lousy,” which he attributed to having a headache and experiencing pain. His thought processes were for the most part goal directed and logical; however, he was vague when discussing specific events that occurred in Vietnam. He did not exhibit disturbances of thought content or perception. He denied suicidal or homicidal ideation, plan or intent. He was oriented. He had memory and concentration difficulties. He was not able to recall any of the 3 items after 5 minutes. He was only accurately able to recite the Presidents to Bush Junior, and he could not complete serial 7s past 93. His ability to abstract appeared to be somewhat concrete. His insight and judgment appeared to be fair to good. He reported that he was easily set off and has problems with irritability and controlling his temper. He reported having problems with concentration and he frequently loses things
part goal directed and logical; however, he was vague when discussing specific events that occurred in Vietnam. He did not exhibit disturbances of thought content or perception. He denied suicidal or homicidal ideation, plan or intent. He was oriented. He had memory and concentration difficulties. He was not able to recall any of the 3 items after 5 minutes. He was only accurately able to recite the Presidents to Bush Junior, and he could not complete serial 7s past 93. His ability to abstract appeared to be somewhat concrete. His insight and judgment appeared to be fair to good. He reported that he was easily set off and has problems with irritability and controlling his temper. He reported having problems with concentration and he frequently loses things. He reported that he experiences panic attacks when he is enclosed in areas or surrounded by a lot of things. He indicated that he has experienced a lot of anger and hate throughout his life.

The examiner diagnosed the veteran with posttraumatic stress disorder with panic secondary to Vietnam combat deployment and fear of hostile military or terrorist activity and alcohol dependence in remission. In addition, the examiner noted he also experiences panic and anxiety, which are likely secondary to the diagnosis of PTSD. The Veteran also had a history of alcohol dependence, which appeared to be in remission.

However, she opined his symptoms appear to be having a mild-to-moderate impact on his life at this time. She opined the Veteran could maintain activities of daily living, including personal hygiene. He had not experienced significant trauma over the last year and there has not been a worsening of his condition. There had not been remissions during the past year. Symptoms were continuous. He did not have problems with drug and alcohol abuse at that time. There was not inappropriate behavior. He was in treatment and responded. He was responding to Bupropion for medications. Thought processes and communication were not impaired. Social functioning was impaired as indicated by his preference to stay to himself and his avoidance of crowds; however, his church family had been helpful for him. She opined his employment was not impacted due to psychological issues. The Veteran denied post-military stressors. Other mental conditions were not found. She opined he was competent to handle VA funds.

As a result, she concluded his PTSD manifested in occasional decrease in work efficiency or there are intermittent periods of inability to perform occupational and social tasks due to signs and symptoms, but generally satisfactorily functioning; examples are sleep difficulties, social isolation, and anger difficulties. PTSD symptoms were severe enough to require continuous medication and treatment.

On May 2012 VA examination, the Veteran reported similar history of military service, illness, past medical and personal history to that of the June 2011 exam. He reported a history of being fired at times from past jobs due to a history of alcohol abuse. He denied significant depressive symptoms. He denied seriously depressed mood, morbid preoccupation, or neurovegetative symptoms. He denied active suicidal ideation, plans, or history of attempts. He did not keep weapons in the home. He stated he would seek help if he was more despondent. He denied active homicidal ideation, plans, or history of attempts. He denied grossly inappropriate behavior. He stated that there are times where he has had increased energy and increased goal-directed behavior, but he did not report clear-cut grandiosity, impulsivity, flight of ideas, or euphoria. He also reported some unusual perceptual experiences, especially at night where he hears noises and feels that a door is opening but reports no clear-cut auditory or visual hallucinations, other schneiderian symptoms, or paranoia, although he can be suspicious and mistrustful. He reported chronic anxiety and estimated that he had 4 to 5 panic attacks per week, but he denies obsessive-compulsive symptoms. The Veteran continued to report intrusive memories at least several times per month. He continues to be somewhat withdrawn. He did not like to be in crowds. At times he had heard loud noises and possibly dissociated. He reported that once more recently he heard a noise at night. He ended up being in the basement and “hiding in the bunker.” His girlfriend found him. The Veteran also reported that he had checking behavior. He is avoidant of military subjects.

On examination, it was noted that the Veteran used portable oxygen. The Veteran appeared friendly and cooperative. His speech was articulate; thought processes logical and goal oriented; motor functioning grossly intact. He walked slowly. He was estimated to have at least average intellect and be a reasonable historian. On St. Louis University Mental Status Exam, the Veteran scored approximately a 19/30, showing deficits of memory and attention and focus. His orientation skills and math skills were grossly intact. His visual motor/visual spatial skills, organization and planning
in the basement and “hiding in the bunker.” His girlfriend found him. The Veteran also reported that he had checking behavior. He is avoidant of military subjects.

On examination, it was noted that the Veteran used portable oxygen. The Veteran appeared friendly and cooperative. His speech was articulate; thought processes logical and goal oriented; motor functioning grossly intact. He walked slowly. He was estimated to have at least average intellect and be a reasonable historian. On St. Louis University Mental Status Exam, the Veteran scored approximately a 19/30, showing deficits of memory and attention and focus. His orientation skills and math skills were grossly intact. His visual motor/visual spatial skills, organization and planning skills, and language and comprehension skills were grossly intact. The Veteran reported some difficulty with forgetfulness.

The examiner noted that there had been some limited improvement and stabilization of his symptoms. Nonetheless he reported continuous symptoms, primarily of anxiety. The examiner noted he may some unusual perceptual experiences and depressive symptoms at times. The examiner opined the Veteran was able to maintain activities of daily living within his physical limitations. He did his own personal hygiene. He had not experienced significant trauma since leaving military service. There had been a very slight improvement of his condition since his last compensation and pension exam. The Veteran denied current alcohol or substance problems. He denied grossly inappropriate behavior. His thought processes and communication showed some impairment of memory and attention and focus. His math skills were good. He did not report excessive spending. In the examiner’s opinion he was still capable of managing his own financial affairs. The Veteran’s social functioning was grossly intact for basic skills. The Veteran has not been employed since approximately 2007 when he stopped working. He worked for XL-Energy for 12 years prior to stopping work. He did maintenance work. He also did other work associated with floor installation. The Veteran had generally performed job tasks satisfactorily and gotten along with others during his work history except when he was using alcohol more heavily in the 1980s to 1990s.

The examiner diagnosed the Veteran with PTSD in partial remission, depression NOS in partial remission, polysubstance dependence reported to be in full remission, and cognitive disorder. The examiner opined his cognitive disorder is less likely as not associated with military situation and as likely as not associated with aging. The examiner stated that it was not possible to differentiate what symptoms were attributable to each diagnosis as there are overlapping symptoms of sleep disturbance and social withdrawal at times. The examiner stated the Veteran’s PTSD manifested in symptoms including depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment. The examiner opined that he could manage his financial affairs. Ultimately, he opined that the Veterans’ PTSD manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactory with normal routine behavior, self-care and conversation.

The Veteran continued to seek mental health treatment through May 2013 for individual therapy, group therapy and medication management.

April 2013 VA mental health notes reflect the Veteran complained of significant increase in agitation lately, he was not sure why. He talked about how this had affected his work in previous years. He would have problems with supervision, would get angry and would threaten them. He would resign rather than be fired. He was worried about violence potential. He gets road rage, angry when out in public. Got into a near altercation at a traffic light just weeks ago, wanted to get into the man’s car and fight. He was upset because the man gave his girlfriend verbal abuse. He reported he was even irritable at church. He tried to work at fast food but got into it with his boss and left after three days.

In an April 2013 letter from VA staff psychiatrist, Dr. R.G. noted that he performed a comprehensive psychiatric evaluation and followup evaluations for the Veteran since 2010. He reviewed the VA mental health records back to 2004 regarding his mental health evaluations and treatment. The examiner stated that the Veteran has a diagnosis of PTSD. The examiner stated that the Veteran witnessed the death of many soldiers and civilians while serving in the Vietnam war. He noted that the Veteran was invoked in convoys and at times were ambushed and involved in firefights. He experiences intrusive memories of women and children lying dead by the side of the road. Since his return he avoids crowds. He had a marked inability to trust, was always hypervigilant, and would become irritable and involved in fights. He had trouble with supervisors and coworkers. He had prominent avoidance behaviors, avoiding war movies or anything that might remind [him] of war. Dr. R.G. noted the Veteran avoided contact with the public and has chronic
The examiner stated that the Veteran has a diagnosis of PTSD. The examiner stated that the Veteran witnessed the death of many soldiers and civilians while serving in the Vietnam war. He noted that the Veteran was invoked in convoys and at times were ambushed and involved in firefights. He experiences intrusive memories of women and children lying dead by the side of the road. Since his return he avoids crowds. He had a marked inability to trust, was always hypervigilant, and would become irritable and involved in fights. He had trouble with supervisors and coworkers. He had prominent avoidance behaviors, avoiding war movies or anything that might remind [him] of war. Dr. R.G. noted the Veteran avoided contact with the public and has chronic high level of anxiety and startle reactions. For many years, he drank alcohol heavily and had legal problems related to it. He drank to minimize the anxiety from PTSD. Dr. R.G. opined that since the Veteran has stopped working, his symptoms intensified. He was treated in 1984 at a VA program for PTSD for 6 months and went through a second treatment program in 2007. Dr. R.G. opined that the Veteran’s PTSD is exacerbated by comorbid major depression. PTSD has led to significant areas of interpersonal function, social functioning and in the ability to maintain. He stated it was in his professional opinion that the Veteran’s suffers PTSD to the point of being disabled. He does not see him as employable due to the severity of his symptoms.

A second April 2013 letter from VA clinical therapy, Ms. P.B. noted that the Veteran has been seen for PTSD since 2004. She noted he was being treated for arousal, avoidance and re-experiencing as he was exposed to combat trauma and was in fear for his life while stationed in Vietnam. He had vivid intrusive, and distressing memories/dreams of his military service. He reported having very little sleep for many years. She stated he struggles with hyperarousal, where he is easily agitated and angered. He avoids people, places, events that remind him of his experiences in Vietnam. He isolates himself and has emotional numbing, where it is very difficult for him to identity and/or share emotions. He experienced a great deal of stress after Vietnam and struggled with relationship problems as well as substance abuse problems. She opined the Veteran’s symptoms will continue to require ongoing therapy and follow up with psychiatry for mediation evaluation. His diagnosis affects his ability to function in social and occupational aspects of his life. She ultimately opined he is disabled as a result of his military experience.

On the March 2016 Disability Benefits Questionnaire (DBQ), the Veteran was diagnosed with PTSD with panic attacks and alcohol use disorder (in sustained remission). He opined that the Veteran’s psychiatric conditions manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner stated that it was possible to differentiate the portion of each symptom is attributable to each diagnosis; the Veterans’ clinical symptoms and occupational and social impairment are entirely due to his PTSD as his alcohol abuse is in sustained remission. He noted the Veteran abused alcohol is medicate his untreated PTSD symptoms.

The Veteran reported that has been divorced since 2008 from his second marriage after 7 years of marriage. Veteran has no friends in the community and has a female significant other of 2 years. Veteran reported he and significant other have no social life, and this has caused conflict in this relationship. He that he has been in heated arguments with others in the community and has threatened others who have angered him. Veteran reported he has lost friends due to his anger management problems. He also reported a similar occupational, educational, legal and substance abuse history. He stated continues to experience anger management problems which have caused conflict with his significant others and others in the community. Veteran has lost 12 female significant others due to his social isolation and anger management problems. He reported he continues to experience nightmares about Vietnamese civilians and the death of a soldier, who was a childhood friend. He reported ongoing panic attacks which occur two times per week. His anxiety symptoms are manifested in hot flashes, racing thought, a fear of something bad happening, difficulty breathing, and rapid heartbeat. Veteran reported the panic attacks when he is unable to control the unwanted disturbing thoughts of Vietnam

The VA examiner noted his PTSD manifests in the following symptoms: 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; and memory loss for names of close relatives, own occupation, or own name.

His PTSD also manifests in less severe symptoms as depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss,
occur two times per week. His anxiety symptoms are manifested in hot flashes, racing thought, a fear of something bad happening, difficulty breathing, and rapid heartbeat. Veteran reported the panic attacks when he is unable to control the unwanted disturbing thoughts of Vietnam

His PTSD also manifests in less severe symptoms as depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect, difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adopting to stress circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; and impaired impulse control, such as unprovoked irritability with periods of violence.

The examiner observed that the Veteran presented with flat affect and fights tears when discussing traumatic events, he experienced in Vietnam. Veteran is oriented to person, place, time, and situation. Veteran’s speech is goal directed, coherent, but at times tangential. He was easily redirected to the topic at hand. He denied hallucination and did not appear to be responding to internal stimuli. His speech did not reflect the presence of flight of ideas, loose associations, or confused thinking. His thought processes were also not reflective of delusions or other psychotic manifestations. Veteran was polite, cooperative and appeared to be a reliable informant. Present evaluation results were believed to be valid. He opined the Veteran was not an imminent danger to himself or others. He did report fleeting thoughts of suicide without a plan. He reported he would not harm himself because he believes in God. The examiner opined he should be considered an increased but not current imminent risk.

A May 2019 private assessment conducted by Dr. H.H. noted that the Veteran continued to struggle with depressed mood, hypervigilance, and disturbance of motivation and mood. His difficulty in maintaining effective relationships also indicated that he struggles with a severe impairment. The examiner opined that these symptoms are indeed related to his service and should be evaluated as same. It should also be noted that the symptoms have been in existence since the Veteran returned from military service and have continued through the date of filing for benefits. She opined his deterioration continues to present date. The Veteran’s troubling PTSD symptoms are preventing him from maintaining substantially gainful employment. Dr. H.H. reviewed all the medical opinions of record.

Dr. H.H. attached several treatises to support her opinion, including: “Psychiatric Status and Work Performance of Veterans of Operations Enduring Freedom and Iraqi Freedom,” “Impact of Social Challenges on Gaining Employment for Veterans With Posttraumatic Stress Disorder: An Exploratory Moderator Analysis,” “Post-traumatic stress disorder, depression and suicidality in inpatients with substance use disorders,” “Employment Status and Posttraumatic Stress Disorder Following Compensation Seeking in Victims of Violence,” “The Civilian Labor Market Experiences of Vietnam-Era Veterans: The Influence of Psychiatric Disorders,” and “Post-traumatic stress disorder and quality of life: Extension of findings to veterans of the wars in Iraq and Afghanistan.”

Collectively, the Board finds the service connected psychiatric disability has been shown to be manifested by total social and occupational impairment due to such symptoms as 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; and memory loss for names of close relatives, own occupation, or own name. These symptoms most closely approximate a 100 percent rating.

The most problematic symptom of the Veteran’s PTSD is anger and rage, which clearly results in grossly inappropriate behavior and as a danger to others, including persons in his community, church and significant others. This symptom has been consistent throughout the entire appellate period. He also has endorsed passive suicidal ideation symptoms and significant memory issues were noted at both VA examinations and in VA records. The Veteran has undergone two in-patient treatment programs for PTSD related symptoms. He reported abusing alcohol and illegal substances to self-medicate from PTSD symptoms, which ultimately lead to a significant criminal history, including incarceration in prison for beating others with a baseball bat. He continues to threaten people and has done so as reflected in 2013 VA records. While the Veteran has attempted employment in the past, and ultimately retired in 2007
, which clearly results in grossly inappropriate behavior and as a danger to others, including persons in his community, church and significant others. This symptom has been consistent throughout the entire appellate period. He also has endorsed passive suicidal ideation symptoms and significant memory issues were noted at both VA examinations and in VA records. The Veteran has undergone two in-patient treatment programs for PTSD related symptoms. He reported abusing alcohol and illegal substances to self-medicate from PTSD symptoms, which ultimately lead to a significant criminal history, including incarceration in prison for beating others with a baseball bat. He continues to threaten people and has done so as reflected in 2013 VA records. While the Veteran has attempted employment in the past, and ultimately retired in 2007, he reported that he has either quit or been terminated from multiple jobs. He reported significant difficulties with managing his temper, resulting in the termination of over a dozen relationships and he does not know why he is unable to manage his temper.

Upon weighing the medical opinions of record, the Board also affords significant weight to the March 2016 DBQ. The examiner conducted a thorough review of the file and a comprehensive examination to note the Veteran has 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; and memory loss for names of close relatives, own occupation, or own name. The Board notes that this assessment has been consistent with a pattern of increased medication and increased problems with anger management.

In other words, the Veteran displayed five out of the seven symptoms that most closely approximate a 100 percent rating.

Oddly, the March 2016 examiner opined that the Veteran’s PTSD only manifested in occasional social impairment with deficiencies in most areas.

In compliance with Agency regulations, when there is reasonable doubt between the two ratings, as in this case, whether his symptoms manifested in symptoms akin to a 70 percent or 100 percent rating, the Veteran must be afforded reasonable doubt for the higher rating in the Veteran’s favor. Accordingly, he is entitled to a 100 percent disability rating as this opinion is consistent with the numerous VA medical opinions of record that indicates the Veteran has total social and occupational impairment due to his PTSD.

The Board also affords great weight to the opinions of the VA doctors and treatment providers. The VA treatment providers have an extended relationship with the Veteran over time, since June 2004. The November 2007 letter from mental health therapist Ms. K.C., the April 2011 prescription note by his clinical social worker, Mr. J.C., the April 2013 letter from VA staff psychiatrist, Dr. R.G., and April 2013 letter from VA clinical therapist, Ms. P.B. all concluded that the Veteran’s PTSD has resulted in total occupational and social impairment or rendered him unemployable.

Typical of many psychiatric conditions, symptoms wax and wane over time. However, there is no evidence that the PTSD symptoms have significantly improved at any point on appeal. Rather, in the April 2013 letter from a VA staff psychiatrist, Dr. R.G. opined that the Veteran’s symptoms have intensified since he stopped working.

These treatment providers reviewed the Veteran’s extensive VA treatment records, used their expertise in reviewing the facts of the case and explained the reasons of their conclusions based on an accurate characterization of the evidence. As such, their opinions must be afforded great weight.

The Board also acknowledges May 2019 private assessment reflects Dr. H.H. opined the Veteran’s troubling PTSD symptoms are preventing him from maintaining substantially gainful employment, and affords it great weight, which is consistent with the totality of the evidence.

On the contrary, the Board assigns little weight to the opinions from the June 2011 and May 2012 VA examiners. They opined that the Veteran’s PTSD manifested in no greater than occupational and occasional impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; most closely approximating a 30 percent rating. Yet, neither examiner considered nor commented on the November 2007 letter from mental health therapist Ms. K.C. or the April 2011 prescription note by his clinical social worker, Mr. J.C. who opined the Veteran’s PTSD results in total and permanent disability and he unable to maintain or return to employment.

Also, these opinions are inconsistent with the evidence of record. The May 2012 VA examiner noted significant trouble with memory but attributed them to age when there are several reports of record that attributes his memory challenges to his psychiatric symptoms. Moreover, the opinions are inconsistent with each other; the June 2011 examiner opined he had difficulty with serial7s past 93, but the May 2012 examiner opined the Veteran had no problems with mathematics.

For all these reasons, the Board finds the
. K.C. or the April 2011 prescription note by his clinical social worker, Mr. J.C. who opined the Veteran’s PTSD results in total and permanent disability and he unable to maintain or return to employment.

For all these reasons, the Board finds the opinions from the June 2011 and May 2012 VA examiners provide little probative value.

Therefore, the Veteran is entitled to an initial 100 percent rating. This represents the maximum rating available for the entire period on appeal.

Effective Date

6. Entitlement to an earlier effective date prior for the increased evaluation of service-connected PTSD is denied.

Under 38 U.S.C. § 5110(a), the effective date of an increase in a veteran’s disability compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (b)(2) provides an exception to this general rule: “The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” Thus, “the plain language of [section] 5110(b)(2) ... only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.”

Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case:

(1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1));

(2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or

(3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)).

See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997).

Here, the Veteran did not present any specific arguments as to entitlement to an earlier effective date. Rather, in the July 2016 NOD, the Veteran expressed disagreement with the increased rating and effective date of the grant of an increased rating, from 30 to 70 percent for PTSD, effective February 8, 2016. In other words, the Veteran sought an increased rating for prior to February 8, 2016, and that he be afforded the maximum rating allowable for the entire period on appeal.

As mentioned above, the Board has granted his claim, finding the Veteran is entitled to a 100 percent rating for the entire period on appeal, July 13, 2010.

A brief review of the procedural history of this case reflects the Veteran was initially granted service connection for PTSD in a July 2011 rating decision. The Veteran filed a NOD in February 2012 as to the rating, but not to the initial effective date. The RO issued a rating decision in May 2013 denying a rating in excess of 30 percent for PTSD, but the claim was still on appeal from the July 2011 rating decision. The Veteran submitted additional evidence including a positive psychiatric medical opinion the same month in May 2013 as well as an additional increased rating claim in June 2013. The RO once again issued a rating decision denying a rating in excess of 30 percent for PTSD in September 2013, instead of a Statement of the Case. The Veteran filed yet again a third application for an increased rating for PTSD, all while the claim was still on appeal. Upon further development, it the RO granted the Veteran’s increased rating claim, from 30 percent to 70 percent in an April 2016 rating decision. The Veteran filed an NOD in July 2016.

The characterization of the appeal as one of an effective date of an increased rating does not convert to an appeal of the initial effective date where the substance of the adjudication addressed the
as well as an additional increased rating claim in June 2013. The RO once again issued a rating decision denying a rating in excess of 30 percent for PTSD in September 2013, instead of a Statement of the Case. The Veteran filed yet again a third application for an increased rating for PTSD, all while the claim was still on appeal. Upon further development, it the RO granted the Veteran’s increased rating claim, from 30 percent to 70 percent in an April 2016 rating decision. The Veteran filed an NOD in July 2016.

The characterization of the appeal as one of an effective date of an increased rating does not convert to an appeal of the initial effective date where the substance of the adjudication addressed the appropriateness of rating for the earliest stage of the appellate period. Neither the Veteran nor the representative has contended the effective date for the increased rating should be prior to the initial date of claim, July 13, 2010. The same questions were addressed in the increased rating claim. Moreover, as the Court has repeatedly found, there can be no “free-standing” effective date claim. Rudd v. Nicholson, 20 Vet. App. 296 (2006).

In sum, there is no actual earlier effective date appeal before the Board. A claim for an earlier effective date prior to the initial July 13, 2010 effective date has not been raised or adjudicated by the RO on the first instance, and the full grant of the Veteran’s claim has not raised any due process concern or prejudiced the Veteran in any way because the same “questions” were addressed as an increased rating. This claim was essentially an increased rating claim. The analysis and result would be similar under either an “entitlement arose” analysis or whether a higher rating is warranted. There remains no question of law or fact to decide. Therefore, the claim is dismissed.

REASONS FOR REMAND

6. Entitlement to service connection for COPD is remanded.

7. Entitlement to service connection for hypertension is remanded.

Issues 6-7: The Veteran asserts that his COPD should be presumed to be service-connected due to exposure to herbicide agents in Vietnam and injuries sustained in service. (See February 2012 Statement in Support of Claim/”NOD”). He also generally seeks service connection for hypertension as a result of his military service. (See July 2016 Notice of Disagreement/Election DRO Process).

The Board acknowledges that a VA medical examination or medical opinion has not been obtained in response to the claim of entitlement to service connection for COPD and hypertension on a secondary basis.

On remand, the AOJ must obtain a medical opinion as to whether the Veteran’s COPD and hypertension are proximately due to or aggravated by his service-connected disabilities, to include PTSD and headaches.

8. Entitlement to a TDIU, to include whether SMC-AA is warranted, is remanded.

Entitlement to TDIU requires an accurate assessment of the impairment associated with all the service-connected disabilities. The Board finds that the issue of entitlement to TDIU is inextricably intertwined with the other issues being remanded and must also be remanded.

The matters are REMANDED for the following action:

1. Obtain the Veteran’s VA treatment records for the period from January 2020 to the Present. If the Veteran sought treatment at any private facility during this period, ask the Veteran to complete a VA Form 21-4142 for the facility or facilities. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lung condition, to include COPD. The examiner must render an opinion on the following:

(a.) What are the lung conditions?

(b.) For each condition, is it at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected PTSD or headaches?

3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hypertension. The examiner must render an opinion on the following:

(a.) Is the Veteran’s hypertension at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected PTSD or headaches or (3) caused by the Veteran’s presumed exposure to herbicide agents in Vietnam?

Matthew Tenner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board N. Pendleton, 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

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