Citation Nr: 18131274
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 17-16 410
DATE:	August 31, 2018
ORDER
Entitlement to an initial rating higher than 30 percent for coronary artery disease, postsurgical percutaneous transluminal coronary angioplasty, (CAD) is denied. 
Entitlement to service connection for an acquired psychiatric disorder, specifically posttraumatic stress disorder (PTSD) and unspecified adjustment disorder with anxious mood, is granted. 
REMANDED
Entitlement to service connection for a bladder disability, to include as due to an herbicide agent, is remanded.
Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.
FINDINGS OF FACT
1.   The Veteran has not had acute congestive heart failure; his CAD has manifested in a workload greater than 5 metabolic equivalents (METs); and left ventricular ejection fraction was greater than 50 percent. 
2.   The evidence is at least evenly balanced as to whether the Veteran’s acquired psychiatric disorder, diagnosed as PTSD and unspecified adjustment disorder with anxious mood, are due to his combat stressor.

CONCLUSIONS OF LAW
1.  The criteria for an initial rating higher than 30 percent for CAD are not met.  38 U.S.C.§§ 1155, 5107; 38 C.F.R.§§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.114, Diagnostic Codes (DC) 7005.
2.  With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD and unspecified adjustment disorder with anxious mood, are met.  38 U.S.C.§§ 1110, 1154(b), 5107; 38 C.F.R.§§ 3.159, 3.303, 3.304.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1966 to October 1968, including service in the Republic of Vietnam.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2016 and June 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  In the November 2016 rating decision, the RO granted service connection for CAD and assigned a 30 percent rating, effective August 23, 2015, and denied the service connection claims for an acquired psychiatric disorder and bladder disability.  In the June 2017 rating decision, the RO denied entitlement to a TDIU.  The Veteran timely disagreed with the initial rating assigned and the other issues listed on the title page. 
The service connection claims for acquired psychiatric disorder and bladder disability has been expanded and recharacterized in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim).
During the pendency of the appeal for an initial higher rating for CAD, the Veteran filed a formal TDIU indicating that he is unable to secure or obtain gainful employment due to his service-connected CAD and other non-service connected disabilities.  See Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940) dated April 2017.  As indicated above, the Veteran timely appealed the June 2017 rating decision that entitlement to a TDIU.  Although the issue of entitlement to a TDIU is not, yet, certified to the Board, the issue is raised as part and parcel of an initial rating claim when the Veteran seeks the highest rating and there is evidence of unemployability due to the disability for which a higher initial rating is being sought.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  
This appeal has been advanced on the Board’s docket.  U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900 (c).
Higher Initial Rating
Entitlement to an initial rating higher than 30 percent for CAD. 
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 Rating Schedule.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.
When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).
The Veteran’s CAD is currently assigned a 30 percent rating under DC 7005.
Under 7005, a 30 percent is warranted for a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. 
A 60 percent rating is warranted when there is more than one episode of acute congestive heart failure in the past year; a workload greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  
A 100 percent rating is warranted for CAD resulting in chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent.
One MET is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute.  When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used.  38 C.F.R. § 4.104.
In an April 2015 private treatment report, the Veteran’s left ventricular ejection fraction was 55 percent and a 2012 stress test resulted in a workload greater than 10 METs but less than 13 METs. 
In November 2016, the Veteran was afforded a VA examination.  The examiner noted the Veteran’s history of a percutaneous transluminal coronary angioplasty that required 3 stents in 2007.  The Veteran reported current symptoms of dyspnea and chest pain.  The examiner diagnosed CAD; there was no congestive heart failure.  Interview-based METs testing revealed a workload greater than 5 METs but less than 7 METs: consistent with activities such as walking 1 flight of stairs, golfing, mowing lawn, and heavy yard work.  Left ventricular ejection fraction was 60 percent to 65 percent.  The examiner indicated that there was no evidence of cardiac hypertrophy or cardiac dilatation based on a May 2016 electrocardiogram.  The examiner concluded that the Veteran’s CAD does not impact his ability to work.
For the following reasons, entitlement to an initial rating higher than 30 percent for CAD, under DC 7005, is not warranted. 
In this case, the Veteran’s CAD resulted in, at worst, a workload greater than 5 METs but less than 7 METs and a left ventricular ejection fraction of 55 percent.  These findings are consistent with the 30 percent rating under DC 7005.
The Veteran’s symptoms of his CAD did not more nearly approximate the next higher rating, a 60 percent, under 7005.  For instance, there was no acute congestive heart failure, METs levels were greater than 5, and left ventricular ejection fraction was greater than 50 percent.  Therefore, an initial higher rating, 60 percent, for CAD is not warranted.
For the foregoing reasons, entitlement to an initial higher rating than 30 percent for CAD is not warranted.  The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application.  38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102. 
The Board has considered the Veteran’s initial rating claim and decided entitlement based on the evidence.  The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
Service Connection
Entitlement to service connection for an acquired psychiatric disorder.
Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service.  38 U.S.C.§ 1110; 38 C.F.R.§ 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R.§ 3.303(d).
There are particular requirements for establishing PTSD found in 38 C.F.R. §3.304 (f), which are separate from those for establishing service connection generally.  Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010).  Service connection for PTSD, requires a medical evidence of PTSD, medical evidence that establishes a link between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred.  See 38 C.F.R. §3.304 (f).
If a veteran engaged in combat and the claimed stressor is related to combat, the veteran’s lay testimony alone generally is sufficient to establish the occurrence of the claimed in-service stressor, absent clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances of the Veteran’s service.  38 C.F.R. § 3.304(f)(2).
The Veteran claims that his acquired psychiatric disorder is due to his combat service in Vietnam and that he has experienced psychiatric symptoms, such as nightmares and hearing voices, since service.  See January 2012 private innovative psychiatric group report and VA examination report dated November 2016.  He reports that while his military occupational specialty (MOS) was a mechanic and engineer, he was also trained in light weaponry, such as a M16 rifle.  He asserts that in 1967, he was deployed to Vietnam and his duties included building bridges to keep watch over the enemy and protecting his fellow soldiers from enemy snipers.  He reports that his PTSD is the result of several instances from his combat service.  For example, he claims he “join[ed] ambushed soldiers to fight the snipers” and that he witnessed many civilians and fellow servicemen severely injured and killed.  Id.  
For the following reasons, entitlement to service connection for an acquired psychiatric disorder, specifically PTSD and unspecified adjustment disorder with anxious mood, is warranted. 
The Veteran has been diagnosed with acquired psychiatric disorders, namely PTSD and unspecified adjustment disorder with anxious mood.  See, e.g., VA medical data report dated May 2016 and examination report dated November 2016.  Therefore, a current diagnosis element is met. 
The Veteran’s DD Form 214 reflects that he served in the Republic of Vietnam for 11 months; his MOS was an engineer equipment repairman and a mechanic; and he was awarded the Expert (rifle) medal.  His service treatment records (STRs) indicates that he sought medical treatment at a Long Binh, Vietnam post.  See, e.g., November 1967, December 1967, and January 1968.  
Although, the Veteran did not receive any medals indicative of combat, the evidence in the record supports a finding that the Veteran engaged in combat with the enemy and the claimed stressor is related to that experience.  VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service).  For instance, the Veteran’s service records confirm that he served in Vietnam.  His statements, concerning his military duties, are consistent with his service records.  Furthermore, it is reasonable to assume that the Veteran did engage in combat based on his location in Vietnam, his MOS, and that he was awarded the Expert (rifle) medal.  Therefore, the evidence supports that the Veteran engaged in combat.  See Gaines v. West, 11 Vet. App. 353, 359 (1998) (holding that evidence submitted to support a claim that a veteran engaged in combat may include the veteran’s own statements and an “almost unlimited” variety of other types of evidence.)
Given that the Veteran’s in-service stressors (namely fighting enemy snipers and witnessing civilians and fellow servicemen severely injured and killed) is consistent with the circumstances of his service and the absence of clear and convincing evidence to the contrary, the Veteran’s statements establishes the occurrence of his in-service stressors.
Therefore, the remaining question is whether there is a relationship between acquired psychiatric disorder and his in-service stressors.  
Several private treatment records dated in 2012 document that the Veteran has been seeking mental health treatment due to his PTSD as a result of his Vietnam service.  See, e.g., private treatment records dated January 2012, February 2012, and March 2012.  Furthermore, the private treatment providers noted that the Veteran has nightmare of his Vietnam experiences and that he hears voices of dead soldiers calling his name. 
In a January 2012 private initial psychiatric evaluation report, a private physician interviewed, documented the Veteran’s current symptoms, diagnosed PTSD, and related PTSD to the Veteran’s combat experience in Vietnam. 
In a November 2016 VA examination report, the VA examiner found that the Veteran’s in-service combat stressors (namely, that the Veteran engaged in combat in Vietnam and that he witnessed his fellow servicemen deaths) were adequate to support a diagnosis of PTSD.  However, the examiner concluded that the Veteran’s acquired psychiatric disorder is less likely than not due to his military service.  The examiner reasoned that the Veteran’s military service included active combat and witnessing death of soldiers and after service he abused alcohol and was held up at gunpoint.  Moreover, the examiner indicated that the Veteran was not diagnosed with PTSD until 2012. 
In a May 2016 medical data report, a private physician interviewed the Veteran, reviewed the Veteran’s private treatment records, and documented his current psychiatric symptoms that included flashbacks and nightmares regarding his traumatic in-service military experiences.  The private physician found that the Veteran met the DSM-5 diagnostic criteria for PTSD and opined that it is secondary to his military service. 
The November 2016 VA opinion that found the Veteran’s acquired psychiatric disorder is not due to his military service is afforded no probative value as it is contradictory and did not consider the Veteran’s statements of ongoing psychiatric symptoms since service.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence); 
The remaining evidence of record consistent of the multiple private treatment records (including the January 2012 private initial psychiatric evaluation report and the May 2016 medical data report) that attributed the Veteran’s PTSD symptoms to his combat experience.  These private treatment records are afforded probative value as to whether there is a link between the Veteran’s PTSD and his in-service combat stressors.  Although the private treatment providers not offer explicit opinions and rationales for their conclusions, it is readily apparent that the PTSD diagnosis is a result of the Veteran’s combat service in Vietnam exposure to traumatic events in service.  See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record).  Importantly, the private physicians documented the Veteran’s current symptoms and his reports of his in-service combat experiences.  
The evidence is thus at least evenly balanced as to whether the Veteran’s PTSD is related to his in-service stressors and as to whether his unspecified adjustment disorder with anxious mood is related to service.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD and unspecified adjustment disorder with anxious mood, is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 
REASONS FOR REMAND
1.   Entitlement to service connection for a bladder disability is remanded.
The Veteran claims that his bladder disability is due to his exposure to an herbicide agent while service in the Republic of Vietnam.  See, e.g., Veteran’s claim dated July 2016. 
As indicate above, the Veteran’s DD Form 214 reflects that he served in the Republic of Vietnam.  Thus, Agent Orange exposure is conceded based on the circumstances of the Veteran’s military service.  See 38 U.S.C. § 1116(f).
Private and VA treatment records show a current diagnosis of a bladder disability, namely status-post bladder carcinoma and urothelial papillary carcinoma.  See, e.g., private medical data report dated May 2016 and private pathology report dated June 2016. 
Although the Veteran’s bladder disability is not among the diseases presumed service connected for veterans who served in Vietnam, the Veteran is not precluded from establishing service connection for these disabilities based on the theory that they were actually caused by Agent Orange exposure.  See 38 U.S.C.§ 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation).  
In a November 2016 VA opinion, a VA physician opined that the Veteran’s bladder disability is less likely than not due to his military service.  The physician reasoned that the Veteran’s STRs do not show a bladder condition.  
The November 2016 VA opinion is flawed, as the physician’s rationale was limited and did not address whether the Veteran’s bladder disability is related to his conceded Agent Orange exposure.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that a medical opinion that contains only data and conclusions is not entitled to probative weight). 
For the foregoing reasons, a remand is necessary to obtain a medical opinion from an appropriate physician as to the etiology of the Veteran’s bladder disability.  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). 
2.  Entitlement to a TDIU is remanded.
The Veteran has raised the issue of entitlement to a TDIU as part and parcel of his claim for a higher initial rating for CAD.  He reports that he is unable to obtain employment due to include as due to his service-connected CAD.  In a May 2016 medical data report, a private physician interviewed the Veteran, reviewed the Veteran’s private treatment records, and found that the Veteran is permanently disabled and he is unable to maintain gainful employment due to his service-connected disabilities.  
In the June 2017 rating decision, the RO denied entitlement to a TDIU, on the basis that the Veteran was not eligible for a TDIU on a schedular basis.  38 C.F.R. § 4.16 (a). 
However, in light of the decision above granting service connection for an acquired psychiatric disorder, the AOJ should consider the issue of entitlement to a TDIU after implementing the Board’s grant herein.  If entitlement to a TDIU cannot be addressed on a schedular basis after implementing the Board’s grant of service connection for an acquired psychiatric disorder, then the issue of entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(a) should be referred to the Director of Compensation 
These matters are REMANDED for the following action:
1.   Request an opinion from an appropriate physician as to the etiology of the Veteran’s bladder disability.  The claims file, including a copy of this remand, must be made available to the physician for review. 
The physician should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s bladder disability, diagnosed as status-post bladder carcinoma and urothelial papillary carcinoma, had its onset in service or otherwise related to service, to include as due to his presumed exposure to an herbicide agent (Agent Orange) in the Republic of Vietnam.
The physician should provide a complete rationale for the opinion given.  The fact that this disability is not on the list of those presumed service connected in veterans exposed to Agent Orange should not be the basis for a negative opinion, as a relationship may nevertheless be shown on a direct basis.
(Continued on the next page)
 
2.  After implementing the Board’s grant of service connection for an acquired psychiatric disability, diagnosed as PTSD and unspecified adjustment disorder with anxious mood, determine whether consideration of entitlement to a TDIU on a schedular basis under 38 C.F.R. § 4.16(a) is warranted.  If so, readjudicate the claim.  If not, refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) to the Director of Compensation and readjudicate the claim after it is returned.
 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Castillo, Associate Counsel 
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