judge_norm: JOHN J CROWLEY

condition: cancer

text:
Citation Nr: 1804000
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  15-09 331	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to service connection for renal cell carcinoma status post right radical laparoscopic nephrectomy (also claimed as clear cell type nephrectomy), to include as due to exposure to herbicides or herbicidal agents.

REPRESENTATION

Appellant represented by:	Matthew Hill, Attorney at Law

ATTORNEY FOR THE BOARD

N. Whitaker, Associate Counsel

INTRODUCTION

The Veteran served on active duty with the United States Navy from May 1966 to May 1968.

This matter comes before the Board of Veterans' Appeals (Board) from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

This matter is before the Board pursuant to the Veteran's request for consideration for review of this case in the Pre-Hearing Conference Pilot Program. The aforementioned request was granted and the Board will proceed with appellate review of the Veteran's claim.

FINDINGS OF FACT

1.  The Veteran served aboard the U.S.S. Preston (DD-795), which operated on the Mekong River Delta and in the Ganh Rai Bay during the Vietnam era, to include in June 1967.  Based on this service, the Veteran's exposure to Agent Orange has been conceded.

2.  Although renal cell carcinoma was not shown in service, and is not among the diseases recognized by VA's Secretary as etiologically-related to exposure to herbicide agents, the competent medical evidence is, at least, in relative equipoise  with a finding that the Veteran's renal cell carcinoma was caused by or otherwise related to his exposure to Agent Orange in Vietnam.

CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for renal cell carcinoma status post right radical laparoscopic nephrectomy (also claimed as clear cell type nephrectomy), are met. 38 U.S.C.A. �� 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. �� 3.303, 3.307, 3.309 (2017).

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REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. � 3.159(b) (2017).  Copies of compliant VCAA notices were located in the claim's file.

In addition, the Board finds that the duty to assist a claimant has been satisfied.  The Veteran's service treatment records are on file, as are various post-service medical records.

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

Service connection, generally

Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service.  38 U.S.C.A. � 1110, 1131 (West 2015); 38 C.F.R. �� 3.303 (a), 3.304 (2017).

Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical 'nexus' requirement).  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. � 3.303 (a) (2017).

In determining whether service connection is warranted for a disorder, 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.A. � 5107 (West 2015); 38 C.F.R. � 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Presumptive service connection

VA regulations provide that if a Veteran served on active duty in the Republic of Vietnam between January 9, 1962 and May 7, 1975, he is presumed to have been exposed to an herbicide agent unless there is affirmative evidence to the contrary. 38 C.F.R. � 3.307 (a)(6)(iii).  Furthermore, "service in the Republic of Vietnam" includes service in the waters offshore if the condition of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. � 3.313 (a).  This provision has been interpreted as requiring the veteran's presence at some point on the landmass or the inland waters of Vietnam.  See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008).  "Inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance.  Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated.  VA Adjudication Procedure Manual, IV.ii.1.H.2.a. Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore.  Id.

A review of the record indicates that the Veteran served aboard the U.S.S. Preston (DD-795).  A deck log for the U.S.S. Preston (DD-795), noted the ship's operations on the Mekong River Delta, Ganh Rai Bay, and the Saignon River during the Vietnam era.  The USS Preston was identified as a ship temporarily operating on Vietnam's inland waterways.  As such, it is presumed that he was exposed to herbicides or herbicidal agents, including Agent Orange. 38 U.S.C.A. � 1116; 38 C.F.R. � 3.307 (a)(6)(iii).

Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases.  38 U.S.C.A. � 1116; 38 C.F.R. �� 3.307 (a)(6); 3.309(e).  The following diseases are associated with herbicide exposure for purposes of the presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes, Hodgkin's disease, ischemic heart disease [including but not limited to acute, subacute and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease, (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal's angina], all chronic B-cell leukemias (including but not limited to hairy cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas.

In this case, the Veteran contends that his status post right radical laparoscopic nephrectomy (also claimed as clear cell type nephrectomy), was caused by or otherwise related to his exposure to Agent Orange in-service.  As the aforementioned condition is not "specifically" covered by the presumption, the Veteran may nevertheless, assert a claim for service connection on a direct basis.

Direct service connection

When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  The Board will now turn to address the entitlement to service connection is warranted on a direct service connection basis.

Service treatment records are negative for treatment or complaints of renal cell carcinoma during active military service.  The Veteran's January 1965 enlistment examination, notes a normal physical evaluation with admissions regarding childhood illnesses including mumps, whooping cough, and a reference to the removal of his tonsils and adenoids at the age of 16.  At discharge, in 1969, the Veteran's physical examination was also normal.  There was no documentation of renal cell carcinoma or symptoms thereof in the accompanying report of medical history.

Post-service medical records demonstrate that the Veteran was diagnosed with renal cell carcinoma in November 2004.

Although the record shows that the Veteran's renal cell carcinoma was not diagnosed in service or for many years thereafter, as set forth above, service connection may also be granted for any disease 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).  Thus, if there is a causal connection between the current condition and service, service connection may be established. Godfrey v. Derwinski, 2 Vet. App. 354   (1992).

The Board observes that there are multiple medical opinions addressing the etiology of the Veteran's renal cell carcinoma.

In December 2011, upon review of the Veteran's medical history, a private urologist opined that the Veteran had no other risk factors for renal cancer and noted a lack of family history of the disease.  Thus, the physician concluded, that it is at least as likely as not that the Veterans renal cancer was caused by or related to exposure to Agent Orange during active service.

In December 2012, the Veteran underwent a VA examination to assess the nature and etiology of his renal carcinoma.  During the clinical evaluation, the Veteran reported a history of kidney stones and left side flank pain.  He noted a suspicious on the right side, which lead to a CT scan, biopsy and later, diagnosis of renal carcinoma.  The veteran underwent a right radical laparoscopic nephrectomy in 2004.  The Veteran notes periodically re-occurring kidney stones and occasional dribbling after voiding due to an enlarged prostate.   Following a review of the record and clinical evaluation, the examiner opined that it is less likely than not that the Veteran's renal carcinoma was caused by or otherwise related to his active service.  In reaching the stated conclusion, the examiner stated there is no known cause and effect relationship between the exposure to Agent Orange in the Vietnam and the development of renal carcinoma (clear cell type nephrectomy).

While the Board acknowledges the VA examiner's December 2012 findings, it nevertheless concludes that the most probative medical evidence of record indicates that the Veteran's renal cell carcinoma was related to his active service, to include presumed Agent Orange exposure.

In reaching this conclusion, the Board notes a March 2016 Independent Medical Opinion provided by a an experienced VA physician and medical advisor.  In pertinent part, the opinion explained that Agent Orange contained a combination of toxic compounds that are cancer promoters, and cites review of multiple studies on the relationship between Agent Orange and renal cell carcinoma show a positive relative risk.  Further, the opinion notes, epidemiologic and toxicological evidence suggests that the combination of toxic compounds contained in Agent Orange and other herbicides because cancers in many areas include the kidneys and renal pelvis.  Therefore, given that the Veteran had no other known risk factors for renal cell carcinoma, the physician opined that it is at least as likely as not that the Veteran's renal cell carcinoma was caused by exposure to herbicides while serving in Vietnam.

In contrast, the VA medical opinion denies a causal relationship between renal carcinoma and Agent Orange exposure based upon a conclusion that there is no known cause and effect relationship between the exposure to Agent Orange in the Vietnam and the development of renal carcinoma (clear cell type nephrectomy).  Neither evidentiary support nor a rationale was provided for the stated conclusion.

Further, the Board notes that the independent medical opinion was provided by a board certified physician trained in occupational/environmental medicine with extensive experience in military medicine and environmental health.  The asserted opinion was based upon a review of medical literature and the Veteran's claims file and reported history, and are accompanied by specific and detailed rationales that are not inconsistent with the evidence of record.  It also specifically addressed all the medical opinions of record, to include the December 2012 VA examiner's opinion, and provided a rationale for opining that the later was insufficient.   By comparison, the independent medical opinion provided a much more detailed and extensive rationale that includes references to specific studies found in medical literature which suggest a relationship between Agent Orange exposure and the development of renal cell carcinoma.

Accordingly, the independent medical opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304   (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Significantly, there is no contrary medical opinion indicating that the Veteran's renal carcinoma is not related to Agent Orange exposure in service.

Given the competent, probative medical opinion and collective medical evidence, the Board finds that application of the benefit-of-the-doubt doctrine resolves in favor of the Veteran's claim for service connection for renal cell carcinoma as due to Agent Orange exposure.

ORDER

Service connection for renal cell carcinoma status post radical laparoscopic nephrectomy, right (also claimed as clear cell type nephrectomy), to include as due to exposure to herbicides or herbicidal agents is granted.

____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: MICHAEL D LYON

disposition: granted

condition: ptsd

text:
Citation Nr: 1805000
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  09-27 620	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia

THE ISSUE

Entitlement to an initial evaluation in excess of 30 percent prior to April 23, 2011, in excess of 50 percent from April 23, 2011 to November 23, 2014, and in excess of 70 percent since November 24, 2014, for posttraumatic stress disorder (PTSD) and episodic alcohol abuse.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

P. Olson, Counsel

INTRODUCTION

The Veteran had active military service from May 1970 to December 1971.

This matter is before the Board of Veterans' Appeals (Board) following Board Remands in March 2011, May 2014, and February 2016.  This matter was originally on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Huntington, West Virginia.

In January 2011, the Veteran testified at a videoconference hearing.  A transcript of that hearing is of record.

The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS).

FINDING OF FACT

During the entire appeal period, it is as likely as not, that the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas; it has not been manifested by total occupational and social impairment.

CONCLUSION OF LAWS

With resolution of reasonable doubt in the Veteran's favor, during the entire appeal period, the criteria for an evaluation of 70 percent, but no higher, have been met.  38 U.S.C. � 1155, 5107 (2012); 38 C.F.R. 4.130, Diagnostic Code 9411 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Preliminary Matters

Pursuant to the Board's February 2016 Remand, the Appeals Management Center (AMC) obtained an opinion assessing the severity of the Veteran's PTSD, readjudicated the claim, and issued a Supplemental Statement of the Case.  Based on the foregoing actions, the Board finds that there has been compliance with the Board's February 2016 Remand.  Stegall v. West, 11 Vet. App. 268 (1998).

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. �� 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2017).  As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C. � 5103(a) have been met.

VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  He was provided the opportunity to present pertinent evidence and testimony.  Moreover, during the January 2011 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. � 3.103(c)(2) and consistent with the duty to assist.  In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication.  38 C.F.R. � 3.159(c).

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. � 1155; 38 C.F.R. � 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7.

The Veteran is appealing the original assignment of a disability evaluation following an award of service connection for PTSD.  As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's PTSD has been rated as 30 percent disabling prior to April 23, 2011,  50 percent disabling from April 23, 2011 to November 23, 2014, and 70 percent disabling from November 24, 2014, under the General Rating Formula for Mental Disorders, 38 C.F.R. � 4.130, Diagnostic Codes 9411-9440.

The rating schedule provides that a 30 percent rating for PTSD requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).

The next higher rating of 50 percent also requires occupational and social impairment, but with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is warranted for even greater occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or
depression affecting 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 inability to establish and maintain effective relationships.

The maximum rating of 100 percent requires total occupational and social impairment due to such symptoms as grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name.  Id.

The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

In evaluating the Veteran's level of disability, the Board has considered the Global Assessment of Functioning (GAF) scores as one component of the overall disability picture.  GAF is a scale used by mental health professional and reflects psychological, social, and occupational functioning on a hypothetical continuum of mental health illness and is relevant in evaluating mental disability.  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)).  Prior to August 4, 2014, VA's Rating Schedule for psychiatric disabilities was based upon the DSM-IV. 38 C.F.R. � 4.130.  The DSM was updated with a 5th Edition (DSM-5), and VA issued an interim final rule amending certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities.  70 Fed. Reg. 45093 ((Aug. 4, 2014).  This updated medical text recommends that GAF scores be dropped due to their "conceptual lack of clarity."  See DSM-5 at 16.  However, since the Veteran's PTSD claim was originally appealed to the Board prior to the adoption of the DSM-V, the DSM-IV criteria, including GAF scores, will be utilized in the Board's analysis.

According to DSM-IV, a GAF score of 51 to 60 indicates the examinee has moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  A GAF score of 41 to 50 indicates the examinee has serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or a serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).

Prior to filing his claim for service connection for PTSD in August 2007, the Veteran was seen for evaluation at the Vet Center in December 2005.  At that time, the examiner noted that the Veteran had been married four times; had complaints of difficulty sleeping, nightmares, and flashbacks; and suffered from depression.  The examiner noted that the Veteran drank eight to twelve beers daily, that he had difficulty with focus and concentration, an exaggerated startle response, and was hypervigilant.  The examiner noted that the Veteran tended to isolate, suffered from survival guilt, and had visual hallucinations on occasion (dark shadowy figures).  The Veteran denied suicidal and homicidal ideation.

VA treatment records indicate that the Veteran was seen in September 2006 for mental health consultation with complaints of PTSD.  He reported that he had been having problems with anxiety and depression over the prior year.  He reported feeling anxious, moody, irritable, suspicious, hypervigilant, depressed, and lonely.  He reported having trouble sleeping, having memory and concentration problems.  The Veteran reported having his thoughts jump from idea to idea, having his mind go blank, having thoughts popping into his head, and having racing thoughts.  The Veteran reported having trouble making decision and being easily startled.  He reported having nightmares or flashbacks once a week.  The Veteran denied hallucinations, delusions, homicidal ideation, and suicidal ideation.  The Veteran reported drinking six to 12 beers daily for forty years and being arrested for two DUIs.  The Veteran reported that he had one parent living, his father, two brothers, and 2 sisters.  He reported that he had good support system from his family.  The Veteran reported that he had been married five times and had had a son with his first wife but no other children.  The Veteran reported having no family problems and that he enjoyed playing golf in his free time.  Mental status examination demonstrated that he was alert and oriented.  He was cooperative and had good hygiene and grooming.  His speech was normal.  His mood was depressed and anxious, and his affect was congruent with mood.  Thought process and association were normal and coherent, there was no unusual thought content, and no suicidal or violent ideation.  The Veteran's insight was adequate, his judgment was poor, and his memory was good.  The Veteran was diagnosed as having PTSD; and a GAF of 50 was assigned.  At that time, the Veteran declined any psychiatric medication.  The Veteran was seen for substance abuse consultation in October 2006, at which time he noted that he had been seeing an outside psychiatrist for PTSD and had been prescribed medication.

Private medical records of Dr. H. indicate that the Veteran was seen in October 2006 for evaluation of PTSD at which time he reported being hypervigilant, sad, tired, moody, and having poor sleep and problems concentrating.  The Veteran reported not liking crowds.  He also reported having flashbacks, intrusive thoughts, nightmares, avoidance, guilt, startling, and reliving trauma experience in a very uncomfortable way.  The Veteran had concerns about being overly nervous, anxious, tense inside, being unable to relax, and having reduced pleasure.  The Veteran reported having depressed mood, loss of interest, decreased esteem, worry, decreased concentration, discouragement, hopeless feelings, negative outlook, and reduced pleasure.  After mental status examination, the Veteran was diagnosed as having PTSD, and a tentative GAF of 50 was assigned.  The Veteran was started on medication addressing anxiety, insomnia and beginning of rebuilding the infrastructure of the central nervous system.  In December 2006, the Veteran reported that he was not taking medication.  Dr. H. noted that the Veteran had no insight.  It was noted that the Veteran was avoidant, edgy, and oppositional.  History was positive for alcohol use.  There were no hallucinations, delusions, suicidal ideation, homicidal ideation, verbal/physical outbursts, or raging at people.  The Veteran was neat, clean, relevant, and cooperative.  He had consistent and appropriate level of consciousness without waxing and waning.  Memory, intelligence, general information, insight, and common sense judgment was baseline.  Orientation was intact.  Treatment was suspended, and the Veteran was advised to return if needed.

Vet Center records indicate that in December 2006, the Veteran reported that he had been gambling and that it was out of control.  He also reported that he was not ready to stop drinking and had chosen not to take medication offered by VA.

VA treatment records indicate that the Veteran was seen for mental health medication management of his PTSD in November 2006, February 2007, April 2007, and May 2007.  Vet Center records indicate that in February 2007, the Veteran reported that he had cut down on his alcohol consumption and had started taking medication which made him feel "fuzzy."  In May 2007, the Veteran reported that his gambling had increased.  In June 2007, the Veteran reported that his anxiety had increased and that his gambling had worsened and was out of control and resisted telling his wife as he was fearful that she would be disappointed.  In July 2007, the Veteran reported that he told his wife about his gambling addiction and that she was angry and shocked.

Since the Veteran filed his claim in August 2007, VA treatment records indicate that the Veteran was seen in August 2007 at which time the Veteran reported that he was taking his medications but that sometimes he forgot to take it, that his sleep was fair (four to six hours), and that he was still drinking occasionally but did not take medication and alcohol together.  At that time, the Veteran was oriented, his mood was anxious, he had a full range of affect with no suicidal ideation, homicidal ideation, or hallucinations.  He was clean, neat, and tidy.  The Veteran was prescribed Librium and Celexa.  A GAF of 45 was assigned for PTSD and episodic alcohol abuse.

Vet Center records from July 2007 to October 2007 indicate that the Veteran reported refraining from gambling but that his drinking had increased.  The Veteran reported in October 2007 that his marriage had been very stable and happy for him, that he and his wife both enjoyed traveling, and that his wife had been a counselor but was working at that time as a substitute teacher.

The Veteran underwent VA examination in October 2007 at which time he reported that he had gone to the Veteran Center two years prior and told that he had PTSD as he was having nightmares and difficulty in sleeping and that the war situation was making it worse.  The Veteran reported that he was nervous, anxious, and irritable and that it was affecting his job.  The Veteran reported that he had been seen by Dr. H. and then by a physician's assistant at VA.  The examiner noted that the Veteran has had interpersonal relationship problems resulting in five marriages being affected and also having had one child who had died.  The Veteran stated, "I am just having a hard time.  I just can't sleep.  I get nervous, irritable, and snappy.  I stay to myself.  I used to go to bars but now I drink by myself, predominantly beer."  The Veteran denied any suicidal attempts.

The Veteran complained of depression, anxiety, agitation, difficulty sleeping, and nightmares.  The Veteran stated that the present situation made it worse and that is irritable and snappy which is why he drinks.  The examiner noted that the Veteran's mood was with some anger in that context as well as self-reproach and he reported that he had become rather withdrawn and stayed to himself.  Mental status examination indicated that the Veteran was neat, tidy, and cooperative.  He spoke clearly, audibly, and rationally.  His mood was with some dysphoria.  He was oriented to time, place, date, and person.  He was a little guarded and suspicious.  There was no evidence of psychosis or thought disorder and no bizarre thought processes.  No tangential or circumstantial thinking were elicited.  Cognition was
intact, and he appeared to be of average intelligence.  There were no hallucinations, no signs or symptoms of schizophrenia, and no evidence of psychosis or thought disorder.  His insight, judgment, and impulse seemed to be fair.  The Veteran reported that he lived with his wife but stayed to himself, did not belong to any
Club, organization, or church and had no particular hobbies or interests.

After review of the file, the examiner diagnosed the Veteran as having PTSD and history of episodic alcohol abuse.  A GAF of 55 was assigned.  The examiner note, "The patient no doubt is showing features of post-traumatic stress disorder manifesting in the form of depression, anxiety, nightmares, survival guilt ... social isolation which he feels he is containing by drinking which I do not feel is related to his post-traumatic stress disorder although it may be a form of self medication."

VA treatment records indicate that in December 2007, the Veteran reported sleeping approximately five hours per night and not having any nightmares.

Vet Center records indicate that in December 2007, the Veteran celebrated Christmas with his family, including his 86-year old father.  In January and February 2008, the Veteran continued to have difficulty sleeping and nightmares two to three times a week; in March 2008, he gambled a small amount.
In May 2008, the Veteran reported having nightmares once a week and still taking Citalopram.  In August 2008, the Veteran reported sleeping about four hours per night and using alcohol (six drinks) three to four times a week.  The Veteran denied being anxious, nervous, or depressed.  In May, June, July, and August 2008, the Veteran had been staying away from gambling.  In August 2008, the Veteran reported that he continued to have difficulty with insomnia and nightmares.  In February 2009, the Veteran denied any gambling, but reported daily drinking.

VA treatment records indicate that in February 2009, the Veteran reported sleeping about three to four hours per night and having nightmares "every once in a while."  He consistently denied hallucinations, suicidal ideation, and homicidal ideation.  A February 2009 mental health medication management note indicated that the Veteran was doing better on medication.  The provider noted that the Veteran worked for railroad, did not smoke, and enjoyed collecting unusual watches.  The Veteran reported that he tried not to think about Vietnam but experienced intrusive thoughts and nightmares.  He also reported trying to avoid news coverage of the current war and that he did not like war movies.  He also reported that he had reduced his alcohol intake.  A GAF of 55 was assigned.

In August 2009, the provider noted that the Veteran was going to the Vet Center monthly.  The Veteran credited his wife for being supportive.  The provider noted that the Veteran drank about 6 to 10 beers per day, and he worked for the railroad and was planning to retire in 18 months, that he tried hard to avoid topics of war, and that he had recurrent intrusive thoughts of Vietnam.  A GAF of 45 was assigned.  In January 2010, the Veteran reported nightmares and flashbacks of Vietnam, that he still drank about six beers a day with no intention of quitting, that he liked NASCAR and sport, and that he and his wife were trying to buy a home.  A GAF of 45 was assigned.

The Veteran underwent VA examination in April 2010 at which time he reported an increase in PTSD symptoms and that he had noticed an increase in symptoms for a couple of years.  The Veteran reported that he had been more depressed and had been thinking about Vietnam more.  He reported that there were days when he was quite depressed but that he tried to keep his mind busy.  He reported having thoughts to give up on life at times but had done nothing to hurt himself.  The Veteran reported that his wife was a previous counselor and helped him out and had stayed with him more than other wives in the past.  The Veteran reported having nightmares once per week and waking up in a cold sweat; having problems with anxiety around crowds; and having flashbacks when he was outside at night taking his dog for a walk and during any rainy or damp weather.  The Veteran reported being paranoid and looking around at night; being unable to watch TV relating to war as far; and being bothered by loud sounds, especially helicopters.  The Veteran reported that he becomes restless, nervous, and jumpy with loud unexpected sounds.  The Veteran also reported having a longstanding problem with alcohol, drinking for more than 40 years, and drinking about 8 beers.  The Veteran reported that alcohol helped him go to sleep.

The Veteran reported that he had been working for the railroads in maintenance for 29 years, that he liked the work because he was by himself, and that there were no problems getting along with coworkers.  The Veteran reported that he spent time at home with his dog and that he was able to take care of his activities of daily living like cleaning, showering, and taking care of his medication.  He denied going to church and socializing much but did indicate that he occasionally golfed.

On mental examination, the Veteran was seen to be casually dressed.  His thought process was coherent, his speech indicated some nervousness and repetition.  He was fidgety and he was tearful while talking about his son who died.  The Veteran's behavior was appropriate.  His thought content showed no delusions, no auditory or visual hallucinations, and no suicidal or homicidal thoughts.  The examiner noted that the Veteran did report being paranoid when he was out at night.  The Veteran's cognitive functioning indicated low average intellectual functioning.  He was well oriented to day, date, month, year, place, person, and situation.  Immediate memory was 1/3 after a few minutes, his recent and remote memory was intact, and his insight and judgment was intact.

The Veteran was diagnosed as having PTSD, alcohol abuse, and major depressive disorder.  A GAF of 50 was assigned for the PTSD, and GAFs of 55 were assigned for major depressive disorder and alcohol abuse.  The examiner noted that the Veteran suffered from PTSD and had had longstanding flashbacks and nightmares.  The examiner noted that the Veteran had lost his dad and that his symptoms had increased.  The examiner noted that the Veteran continued to drink but did not think it was a problem at that time, that he had a history of DUIs in the past, and that the alcohol abuse related to his service-connected PTSD of longstanding problems with sleep.  The examiner noted that the major depressive disorder related to non-service connected health issues and the death of his father.  The examiner noted that the Veteran was working and had been working for 29 years with the railroad.  The examiner noted that the Veteran s service-connected symptoms did affect him socially and were at least moderate at the present time as far as current level of severity was concerned.

VA treatment records indicate that in January 2011, the Veteran reported he quit drinking three months prior and had no cravings; that he just decided to quit.  The Veteran reported intrusive unwanted thoughts and nightmares and avoided being around crowds and strange places.  The Veteran reported having no social interactions and noted that about the only person he trusted was his wife.  The Veteran reported having emotional problems in the past and being married five times.  The Veteran reported avoiding news and discussions of war and not wanting to watch war movies.  The Veteran was oriented, his mood was anxious with a narrow affect, and he showed an exaggerated startle response as well as difficulty with concentration and attention.  The Veteran denied suicidal ideation, homicidal ideation, and hallucinations.  The Veteran was diagnosed as having alcohol abuse in partial remission and chronic PTSD.  The provider noted, "In my professional medical opinion, [the] Veteran [] has severe PTSD.  He was advised by me to quit working however he says he is not ready to do that."  A GAF of 45 was assigned.

The Veteran underwent VA examination in April 2011.  At that time, the Veteran reported thinking about Vietnam quite often, having nightmares about two to three times per week, and sleeping about three to four hours per night.  The Veteran reported waking up anxious and nervous.  The Veteran reported avoiding watching anything related to war on TV because it bothered and upset him.  The Veteran reported being hypervigilant to unexpected sounds and jumpy.  The Veteran reported that he did not like to be around crowds and that he wanted to be by himself.  The Veteran reported that working helped because he was able to be by himself and that work kept his mind occupied.  The Veteran reported becoming depressed with decreased energy and interest in activities.  He denied any suicidal or homicidal thoughts although he noted that thoughts of giving up on life had crossed his mind.  He reported that he was not sure whether he would be alive if his wife had not been supportive.  The Veteran reported that he had a short temper and became irritable easily.  The Veteran reported that he had been thinking about Vietnam more and that his symptoms were increasing.  The Veteran reported that he continued to drink about six to seven beers a day which helped him sleep.  The Veteran reported working and taking his dog for a walk.  He was noted to be able to take care of himself like cleaning, showering, and taking care of his medications and bills although he noted that his wife helped him with his bills and reminded him to take his medications.  The Veteran reported that he liked to golf but that he did not go to church, did not socialize, and stayed at home.

Mental status examination demonstrated that the Veteran was a depressed gentleman.  His affect was tearful at times, he was fidgety and nervous, and he kept his head down.  He was casually dressed.  His cognitive functioning indicated that he was well-oriented to day, date, month, year, place, person, and situation.  Immediate memory recall was one out of three, and recent and remote memory appeared intact.  His mood was rated as 5 on a scale of 1-10.  His anxiety level was rated as 7 on a scale of 1-10.  He reported no suicidal or homicidal thoughts and no auditory or visual hallucinations except that from the corners of his eyes he reported seeing some shadows.  He reported some intrusive thoughts, flashbacks, and nightmares.  Insight and judgment were intact.

The examiner noted that the Veteran continued to suffer from PTSD symptoms including intrusive thoughts, flashbacks, nightmares about soldiers getting injured and enemies getting blown up.  The examiner noted that the Veteran had social avoidance and that he was comfortable working by himself.  The examiner noted that the Veteran had depression related to his father's death and his physical health issues with symptoms of PTSD.  The examiner also noted that the Veteran had secondary alcohol abuse related to PTSD which helped him sleep.  The examiner noted that the Veteran had worked for 30 years for the railroad and opined that the Veteran's industrial impairment was moderate to severe but noted that he had been able to hold onto his job because he worked by himself and that working had kept his mind occupied.  The examiner opined that the Veteran's social capacity was severely affected as far as social relationships were concerned related to PTSD.  The examiner noted that the Veteran's symptoms had increased.   A GAF of 45 was assigned for PTSD, and a GAF of 50 was assigned for major depressive disorder.

The Veteran underwent VA examination in November 2014 at which time it was noted that he remained married to and got along well with his wife of 14 years.  The Veteran reported that he spent his days walking his dog and that he enjoyed watching the news.  The Veteran reported that he had a few friends with whom he played golf and drank.  Otherwise, he reported living a sedentary life.  The Veteran reported that he retired from the railroad in 2011.  He also reported that he was not taking any psychiatric medication and last saw a mental health provider in 2011.  The examiner noted that the Veteran continued to reported hypervigilance, nightmares, avoidance, irritability, etc., and that he continued to meet the diagnostic criteria for PTSD.  The Veteran also reported drinking five or six beers a day.  The examiner stated, "Based on my interview and exper[ie]nce with this vet his symptoms remain stable.  There is no evidence of worsening in symptom[ato]logy."  The examiner noted that the Veteran's PTSD symptoms were manifested by depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships.  After review of the record, the examiner found that the Veteran's PTSD was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.

In July 2016, a VA addendum opinion was obtained at which time the examiner, a VA psychiatrist, noted that the assigned GAF was presumed to be:  "equal to 45 for PTSD" which is the GAF that was assigned in 2011 and for which the 2014 exam stated:  "Based on my interview and exper[ie]nce with this vet his symptoms remain stable.  There is no evidence of worsening in symptom[ato]logy," which this current examiner interprets as that the previous GAF remains stable and unchanged.  The examiner also noted that the 2011 examiner stated that the alcohol disorder was a result of the PTSD, that the 2014 examiner did not address separate psychiatric diagnoses.  The examiner noted,

The veteran's current problem list in CPRS since 2015 list only PTSD and no alcohol or depression.  It can only be assumed, since the veteran has not received any care for his PTSD, depression, or alcohol since 2011 that the only standing diagnosis at this time is continued PTSD and alcohol use, since the veteran disclosed an unchanged amount of daily alcohol use ("I never miss a happy hour").  It would be assume from the 2011 exam that all psychiatric diagnoses and symptoms are a result of PTSD, since this was the 2011 examiner's determination.

The Board also notes that the Veteran's PTSD symptom severity has fluctuated during the appeal period which included recurrent intrusive thoughts of traumatic experience, recurrent nightmares, irritability, hypervigilance, depressed and anxious mood, avoidance of events/stimuli associated with traumatic event, guilt feelings.  The Veteran's symptoms also included poor sleep and being withdrawn and isolative.

It appears at first glance that the Veteran had no deficiency with respect to family relations.  Although the Veteran reported interpersonal relationship problems resulting in five marriages, the Veteran consistently indicated that he had a happy and stable marriage and received support from his wife.  In September 2006, the Veteran also reported that he had one parent living, his father, two brothers, and 2 sisters and that he had good support system from his family.  In December 2007, the Veteran reported celebrating Christmas with his family including his father.  In October 2008, the Veteran reported that one of his brothers with whom he did not have a good relationship came visited for the first time; they had a good visit and discovered they had a lot in common.  In addition, it appears that the Veteran had friends that he spent time with including gulfing occasionally and drinking.

Despite his reports of good relationships, the Veteran has consistently indicated that he mostly stayed to himself, that he belonged to no clubs or organization, and did not attend church.  In January 2011, the Veteran reported that he had no social interactions and about the only person that he trusted was his wife.  The examiner who conducted the April 2010 and April 2011 VA examinations noted in April 2010 that the Veteran's PTSD symptoms affected him socially and were at least moderate at that time and noted in April 2011 that the Veteran's social capacity was severely affected as far as social relationships were concerned related to PTSD.

Although the Veteran was able to work during the appeal period until his retirement in 2011, the medical professionals indicated that it was possible because he worked alone and that working kept his mind occupied suggesting that the Veteran would have suffered more distress from his PTSD had he not been working.  Even so, the Veteran reported at the October 2007 VA examination that his nervousness, anxiety, and irritability were affecting his job.  The April 2011 VA examiner noted that the Veteran's industrial impairment was moderate to severe but that he was able to hold onto his job because he worked by himself.

In addition, although the Veteran's judgment was noted to be fair on VA examination in October 2007, noted to be intact on VA examinations in April 2010 and April 2011, the Veteran was noted to suffer from alcohol addiction.  Although the VA examinations have demonstrated no cognitive impairment, the Veteran reported problems with concentration.  Although the April 2010 and April 2011 VA examiner noted that the Veteran's major depressive disorder was attributable to nonservice-connected disorders, the October 2007 examiner found that the Veteran was showing features of PTSD manifesting in the form of, inter alia, depression.  The VA psychiatrist in July 2016 found the since the 2011 examination, all psychiatric diagnoses and symptoms, which included depressed mood, could be assumed to be the result of PTSD.

Finally, the Board notes that the Veteran's GAF scores assigned during the entire appeal period ranged from 45 to 55.  GAFs of 45 were assigned in August 2007, August 2009, January 2011, on VA examination in April 2011, and by the VA psychiatrist in July 2016 for the November 2014 examination.  The Board notes that GAF scores are not, in and of themselves, the dispositive element in rating a disability; rather they must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. � 4.126 (a) (2017).  Nevertheless, the GAF scores assigned between 45 and 50 indicate serious symptoms or serious impairment in social or occupational functioning and are consistent with the Veteran's PTSD symptomatology.

Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that during the entire appeal period, the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most area including work, judgment, thinking and mood.  Therefore, the Veteran's symptoms due to PTSD during the entire appeal period exceeded the criteria for the 30 and 50 percent ratings and more nearly approximated the criteria for the 70 percent rating.

There, however, has not been any indication of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, intermittent inability to perform activities of daily living, disorientation as to time or place, or memory loss for names of close relative, own occupation or own name.  Therefore, the Board finds that the Veteran's PTSD symptoms have not exceeded the criteria for a 70-percent rating.  The criteria for a 100 percent rating are met when the veteran experiences total occupational and social impairment, which is clearly not demonstrated in this case.

Upon consideration of all of the relevant evidence of record, the Board finds that during the entire appeal period, the Veterans PTSD has been manifested by occupational and social impairment with deficiencies in most areas; and that at no time during the appeal period has the Veteran's PTSD been manifested by total occupational and social impairment.

ORDER

Entitlement to an initial evaluation of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) and episodic alcohol abuse is granted subject to the law and regulations governing the payment of monetary benefits.

______________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: S HENEKS

disposition: remanded

text:
Citation Nr: 1806000
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  12-08 900	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona

THE ISSUE

Entitlement to service connection for a neck disorder (also claimed as upper back condition), to include as secondary to service-connected lumbosacral degenerative disc disease disability.

REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars

ATTORNEY FOR THE BOARD

S. Morrad, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1978 to June 1998.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.

REMAND

The Veteran contends that he is entitled to service connection for a neck disorder, also claimed as an upper back condition (hereinafter referred to as "neck disorder" collectively).  Based on the Veteran's April 2012 substantive appeal, he maintains that his neck disorder is related to his lower back issue and that his neck has been getting worse due to his posture change and the pressure created by service-connected lumbosacral degenerative disc disease.

Before a decision can be reached on the Veteran's claim, a remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration.  See 38 U.S.C. � 5103A (2012); 38 C.F.R. � 3.159 (2017).  The Board finds that a VA examination is needed before it can adjudicate the Veteran's claim.  38 U.S.C. � 5103A(d); 38 C.F.R. � 3.159(c)(4).  The Board notes that VA's duty to assist includes providing a medical examination or obtaining a medical opinion where, as here, there is competent evidence of symptoms of a disability, and an indication that the claimed disability might be related to the Veteran's service or service-connected disability.  See 38 U.S.C. � 5103A(d); 38 C.F.R. � 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006).  Thus, on remand, the Veteran should be afforded a VA examination that addresses the nature and etiology of his claimed neck disorder.

Accordingly, the case is REMANDED for the following action:

1.  Obtain any additional relevant VA or private treatment records identified by the Veteran, to include records pertaining to cervical spine surgery at University Medical Center in Tucson as identified by the Veteran in his April 2012 substantive appeal.

2.  Thereafter, afford the Veteran a VA examination with an appropriate medical examiner to determine the nature and etiology of his claimed neck disorder.  The claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner.  All tests and studies deemed necessary by the examiner should be performed, and all clinical findings should be reported in detail.  After a review of the record and an examination and interview of the Veteran, the examiner should offer his or her opinion as to the following inquiries:

i)  The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's neck disorder is caused by, or otherwise etiologically related to, the Veteran's active military service.

ii)  The examiner should opine as to whether it is at least as likely as not that the neck disorder is (a) caused OR (b) aggravated by the Veteran's service-connected lumbosacral degenerative disc disease disability.

"Aggravated" for VA purposes means that the condition is permanently worsened beyond its natural progression.

In rendering such opinion, the examiner should, at a minimum, consider and address the Veteran's contention expressed in his April 2012 substantive appeal that his neck has been getting worse due to posture changes and pressure created by degenerative disc disease of the lumbar spine.

If the Veteran's lumbosacral degenerative disease disability is found to aggravate his neck disorder, the examiner should identify the percentage of disability that is attributable to the aggravation.  See 38 C.F.R. � 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995).

A complete rationale should be provided for any opinion expressed.  If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, he or she should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion being sought.

3.  After completing the development requested above, and any other action deemed necessary, re-adjudicate the Veteran's claim.  If the benefit sought is not granted in full, furnish the Veteran and his representative a Supplemental Statement of the Case after affording the requisite time period to respond.  The matter should then be returned to the Board for appropriate appellate review, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. �� 5109B, 7112 (2012).

_________________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. � 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2017).